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COMMONWEALTH PENNSYLVANIA v. NELSON CHARLES MIKESELL (12/23/77)

decided: December 23, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
NELSON CHARLES MIKESELL, APPELLANT (TWO CASES)



COUNSEL

Lester G. Nauhaus, John H. Corbett, Jr., Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Robert A. Zunich, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., concurs in the result.

Author: Eagen

[ 475 Pa. Page 590]

OPINION OF THE COURT

Appellant, Nelson Charles Mikesell, was convicted by a jury of two counts of murder of the first degree and other

[ 475 Pa. Page 591]

    related offenses.*fn1 Post-verdict motions were denied, and concurrent sentences of life imprisonment were imposed on the murder convictions. Judgments of sentence on the related offenses were suspended. These appeals followed.

While Mikesell has not challenged the sufficiency of the evidence to support the murder of the first degree verdicts, we have made an independent review of the record and have determined sufficient evidence exists to support them. From the evidence the jury could find the following:

On September 18, 1974, at approximately 11:40 p. m., Marilyn Mikesell, appellant's estranged wife, Joseph Malone, her escort, and Christine Mikesell, appellant's and Marilyn's daughter, were shot by Mikesell outside of Marilyn's residence. Mikesell sat in an automobile awaiting their arrival, and shot them without any provocation shortly after they arrived. Marilyn and Malone died as a result of the shooting; Christine, who was three years old at the time of the shooting, was wounded in the hand.

Mikesell testified he shot the victims, but claimed he did so "in a fit of anger and passion" following an intense argument with Marilyn and Malone over various matters including their refusal to allow him to talk with Christine. He also testified he had gone to Marilyn's residence to obtain the name of a particular doctor in order to have his older daughter, Cynthia, over whom he had general custody, medically treated.

The Commonwealth presented evidence to refute any such argument having occurred.

Mikesell advances four assignments of error. Since we sustain one of the asserted assignments of error and conclude this error mandates a new trial, we will not reach the others.*fn2

[ 475 Pa. Page 592]

We rule the trial court committed reversible error in denying Mikesell's motion for a mistrial following the conclusion of the closing argument of the assistant district attorney.*fn3 The motion was based on a claim that portions of the argument ...


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