Daniel J. Ackerman, Richard H. Galloway, Greensburg, for appellant.
Albert M. Nichols, Dist. Atty., John J. Driscoll, Greensburg, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., dissents.
Appellant Merle Ronald Gilman was convicted of first degree murder and sentenced to life imprisonment after a jury trial. At trial appellant objected to several remarks made by the prosecutor during closing argument and moved for a mistrial. Appellant preserved these objections in his post-trial motions. The prosecutor's remarks included an attempt to disparage appellant's trial strategy, a personal attack on appellant himself, and an appeal to the emotions of the jury. Appellant contends that he is entitled to a new trial.*fn1 We agree. The prosecutor's remarks were improper and denied appellant a fair trial. We reverse the judgment of sentence and remand for a new trial.*fn2
The Commonwealth presented evidence at trial to establish that the decedent, Lee Ann Grimm, and a companion, Sandra Johnson, were hitchhiking to Cramer, Pennsylvania, during the late evening hours of July 5 and the early morning hours of July 6, 1973, when appellant stopped and gave them a ride. They stopped at a roadside tavern to buy beer. The trip continued with three more stops during which appellant propositioned his passengers to engage in sexual acts. The last stop was in a secluded, wooded area where Ms. Grimm agreed to submit to appellant's demands if he would then take them home.
After engaging in sexual acts with appellant, Ms. Grimm asked Ms. Johnson to likewise submit to appellant's demands. When Ms. Johnson refused, appellant tried to pull her from the car. A struggle ensued during which appellant struck both women about the head and neck with a blunt instrument. Ms. Johnson escaped into the woods. Ms. Grimm's wounds were fatal.
Appellant was arrested in North Carolina and brought to Westmoreland County where he was indicted. A motion for change of venue was granted because of adverse pre-trial publicity and the case was transferred to Northampton County for trial.
At trial, appellant did not deny the slaying but contended it was voluntary manslaughter. He introduced psychiatric testimony to prove that he killed Ms. Grimm in the heat of passion. He did not testify on his own behalf. In a statement to the police which was introduced by the Commonwealth at trial, appellant claimed that one of the two women first struck him with a blunt instrument which he took away and used against the women.
The prosecutor's remarks which form the basis of this appeal were made during closing argument. They are as follows:
"In this case distinguished defense counsel . . . got up before you to tell you that on behalf of their client they accept the responsibility of voluntary manslaughter. Well, at first blush it would seem to be a magnanimous gesture. Why would they do that? You know, oftentimes to avoid the true and final verdict you get up before a jury and are willing to accept and tell the jury that your client is guilty of a lesser offense. You try to becloud the issue . . . by saying: 'I am guilty. Judge me.' It is smart; it is shrewd. I hope that you people here in this jury box . . . are not deceived by such trial tactics.
Ladies and gentlemen of the jury, Merle Ronald Gillman is a cold-blooded killer. Merle Ronald Gillman is cunning, he's sly, he's calculating, he's deceiving. He does not deserve your consideration, your pity, nor your sympathy.
What forms the basis or the alleged basis of this effort to sneak out with a voluntary manslaughter is this statement here, made approximately five days after the offense occurred. Right after Merle Ronald Gillman coldly and brutally beat severely Lee Ann Grimm to her death, he took off for North Carolina.
MR. GALLOWAY [defense counsel]: If the court please, I object to that as being not ...