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decided: August 17, 1977.



Nino V. Tinari, Stephen P. Patrizio, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., William J. Stevens, Jr., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Nix, J., dissents. Jones, former C. J., and Pomeroy, J., did not participate in the consideration or decision of this case.

Author: Eagen

[ 474 Pa. Page 65]


Salvatore Perillo was convicted by a jury in Philadelphia of murder of the first degree. Post-verdict motions were denied and judgment of sentence of life imprisonment was imposed. This appeal followed.

Perillo advances seven assignments of error as grounds for the grant of a new trial.*fn1 Of the seven assignments of error, five involve alleged prosecutorial misconduct at various stages of the proceedings, one involves the trial court's instructions to the jury concerning proof beyond a reasonable doubt, and one involves the manner in which the Commonwealth proved Perillo's prior criminal record.

Initially, we must determine if the assignments of error now advanced are properly preserved for review since the Commonwealth maintains they are waived because Perillo failed to assert them in written post-verdict motions. See Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Written post-verdict motions of the "boiler-plate" variety were filed on February 6, 1975 and contained the following:

"The defendant reserves the right to file Additional and Supplemental Reasons for New Trial and Arrest of Judgment when the Notes of Testimony taken at the trial have been transcribed and a copy thereof made available to counsel for defendant."

Thereafter, on June 2, 1975, at the time of argument on post-verdict motions, Perillo filed a brief setting forth specifically each and every assignment of error now advanced and legal argument in support thereof. The court en banc entertained and considered each and every one of these assignments of error. Under the circumstances, we believe the requirement, that post-verdict motions and all assignments

[ 474 Pa. Page 66]

    of error be in writing, Pa.R.Crim.P. 1123, has been substantially complied with.*fn2

Since it is clear from the record that the prosecuting attorney was guilty of misconduct which precluded a fair trial and the rendition of an objective decision by the jury, we will order a new trial on this basis without reaching the other assignments of error.

The relevant facts are as follows:

On July 28, 1973, at approximately 11:45 a. m., John Benkert was fatally wounded by a gunshot while seated in his car at a highway intersection in south Philadelphia. At trial, two eyewitnesses identified Perillo as the person who shot Benkert. Perillo was also connected to the killing through a fingerprint, and through ballistic tests which compared cartridge casings of bullets found at the scene of the crime with cartridge casings of bullets fired from a .25 caliber pistol owned by Perillo and seized by police pursuant to a search warrant. The defense disputed the validity of the Commonwealth's evidence concerning the fingerprint and the validity of the conclusions which were drawn from the ballistics tests. Additionally, the defense presented various witnesses in an attempt to establish Perillo was not at the scene of the crime at the time Benkert was shot. In this connection, the defense called Daniel Murtha who testified, in effect, that he saw a person with a gun fleeing the scene of the killing and that Perillo was not this person.

During cross-examination of Murtha, the following occurred:

"[By the Commonwealth:]

[ 474 Pa. Page 67]

"Q. Now, Mr. Murtha, yesterday you were telling us about your conversations with the defendant. Sir, in your conversations with this defendant did this defendant give you a description of an eyewitness who testified in this court just three weeks ago against him, sir?

"[Defense Counsel:] Objection, Your Honor.

"The Court: Objection overruled.

"A. No, sir.

"Q. And, did he tell you in this conversation, sir, that it was his intention, through his private investigator, to bribe this particular witness had failed --

"[Defense Counsel:] Objection.

"Q. -- and he needed you to turn the tables on the witness?

"[Defense Counsel:] Objection, Your Honor.

"The Court: Objection sustained. The Jury will ignore it. As I told you before, and I am instructing you again, testimony comes from the mouths of witnesses not from the statements of counsel.

"[By the Commonwealth:]

"Q. Did he tell you, sir, that he needed you to come in here and lie as a fancy trick to turn the tables and turn the thing around --

"[Defense Counsel:] Objection.

"Q. -- because he couldn't succeed in what he was trying to do with this particular eyewitness ?

"[Defense Counsel:] Objection. I move for a mistrial, Your Honor.

"May we see you at side-bar? There is a case exactly on point concerning this kind of cross-examination.

"The Court: All right.

"(Whereupon a discussion was held at side-bar ...

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