Jerome E. Furman, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Bonnie Leadbetter, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy and Nix, JJ., dissent.
Appellant Elbert Spencer Cherry was tried before a jury and convicted of murder of the first degree, attempted aggravated robbery, and conspiracy in connection with the April 22, 1971 slaying of Morrell Reed. In this appeal, appellant contends that statements of the prosecutor made during closing argument to the jury were improper and deprived him of a fair trial.*fn1 We agree, reverse judgment of sentence and grant appellant a new trial.*fn2
Mrs. Barbara Calloway Roby, the principal witness for the Commonwealth, testified that Morrell Reed and she were visiting Smitty's Bar on the night of the killing. Mrs. Roby testified that appellant entered the bar and sought to buy drugs from them. Accepting this offer, Morrell Reed and she left the bar with appellant to make the sale.
Morrell Reed, Mrs. Roby, and appellant entered a station wagon parked outside the bar. The station wagon, occupied by several persons who had accompanied appellant to the bar, was then driven away.
Mrs. Roby testified that the driver stopped the station wagon, following which appellant and another person in the vehicle, Byron Edwards, said to Morrell Reed and her, "This is a stickup." According to Mrs. Roby, appellant then told another of his original companions, "Brown Eyes," to search Mrs. Roby. Mrs. Roby testified that, after she protested, she was punched by David Cherry and David Cherry then shot Morrell Reed while Reed was trying to restrain him. Reed died shortly thereafter.
On cross-examination, defense counsel attempted to show that Mrs. Roby's testimony was inconsistent with statements she made to the police subsequent to the crime. In closing argument, defense counsel told the jury that he perceived a total of nineteen inconsistencies in her trial testimony, detailing each of them. Included in counsel's list of inconsistent statements were Mrs. Roby's account of how long appellant
was in the bar, how she obtained the drugs in question, where she kept the drugs, who said "This is a stickup," and ...