No. 63 January Term, 1977, Appeal from the Order dated August 12, 1976 of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, February Term, 1973, No. 451, Dismissing Appellant's Petition for Post-Conviction Relief.
Martin J. Kilstein, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., filed a dissenting opinion in which Larsen, J., joined.
This appeal is from the denial of post-conviction relief, following an evidentiary hearing, by the Court of Common Pleas of Philadelphia County. Appellant was originally charged with murder and aggravated robbery in 1973 for the beating death of one Arthur Bock. He was tried and convicted by a jury of murder in the second-degree. Following denial of post-verdict motions, appellant was sentenced to imprisonment for a term of ten to twenty years. Appellant's trial counsel then took an appeal to us. On direct appeal, we affirmed the judgment of sentence. Commonwealth v. Evans, 465 Pa. 12, 348 A.2d 92 (1975).
Appellant, now represented by new counsel, raised several issues before the PCHA Court. He pursues three of these issues here, contending that he was denied the effective representation of counsel at trial: (1) because of trial counsel's
failure to challenge the admissibility of an alleged confession on the basis that appellant's arrest was illegal or (2) on the basis that the statement was obtained during a period of unnecessary delay following appellant's arrest; and (3) because of trial counsel's failure to object to certain allegedly inflammatory remarks of the prosecutor made during his summation to the jury. We believe the last of these allegations is meritorious and requires that appellant be granted a new trial. We therefore need not now discuss the other issues raised.
Appellant argues that his trial counsel was ineffective for not objecting to certain remarks made by the prosecutor during his closing summation to the jury. The remarks in question are as follows:
"I want you to remember that as I said, our best witness is not here. Arthur Bock will never again walk the streets of Philadelphia or go to work . . . or see any of his four children or see them smile, or see them grow up, graduate from school or get married or anything else, and why, because this defendant after drinking some wine, snuffed out his life for a few measly dollars, the money that his mother brought in his bloody shoes. I say to you, ladies and gentlemen, that the only way that you can fail to bring back a verdict of guilty of murder in the first degree is if Arthur Bock walks through those doors. Shall we wait?"
This statement could constitute grounds for a mistrial if objected to by defense counsel, see Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974).
We have repeatedly held that it is improper for the prosecuting attorney to express his or her personal opinion about a defendant's guilt. As we said in Commonwealth v. Gilman, ...