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COMMONWEALTH PENNSYLVANIA v. ALVIN JOYNER (11/24/76)

decided: November 24, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
ALVIN JOYNER, APPELLANT (TWO CASES)



COUNSEL

Louis M. Natali, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Pomeroy

[ 469 Pa. Page 334]

OPINION OF THE COURT

Appellant, Alvin Joyner, was convicted by a jury of murder in the first degree and several related offenses.*fn1 The charges arose from an assault by appellant and others on a police guard house in Cobbs Creek Park in the City of Philadelphia during which one police officer was killed and another wounded. In this appeal,*fn2 Joyner advances

[ 469 Pa. Page 335]

    six assignments of error. Because we have concluded that appellant is entitled to a new trial as a result of inflammatory and prejudicial remarks made by the prosecuting attorney during his summation to the jury, we need not consider the other issues presented.*fn3

Following the completion of the prosecutor's summation,*fn4 defense counsel moved for a mistrial because of a large number of allegedly improper statements made therein which were claimed to be prejudicial both individually and in their collective effect. After a full argument the motion was denied, and later a motion for new trial was denied. We are satisfied that the trial court erred in denying these motions. We are mindful, of course, that not every unwise or unwarranted remark made by counsel or the court in the course of a trial compels the granting of a new trial. Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). "A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial." 450 Pa. at

[ 469 Pa. Page 336611]

, 301 A.2d at 674. See also Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289, 292 (1968) ("In Pennsylvania, the law is clear that the alleged offending language's unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict").

The objectionable material in the prosecutor's summation can be grouped into three categories: (1) improper expressions of belief; (2) improper expressions of opinion as to credibility of witnesses; and (3) improper statements of fact.

1. Improper Expressions of Belief

Near the beginning of his jury speech, the prosecutor made the ...


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