Nos. 384 & 402 January, 1976, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment Nos. 612 and 613, July Term, 1975.
Joel Every, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Appellant, Anthony Gwaltney, was convicted by a jury on December 8, 1975 of murder of the third degree and criminal conspiracy. After denial of post-trial motions he was sentenced to consecutive terms of imprisonment of 10-20 years on the murder charge and 5-10 years on the conspiracy charge. This appeal followed.*fn1
The record discloses that on November 21, 1974, at approximately 11:00 A. M., John Wearing alighted from an automobile in North Philadelphia in order to make a purchase at a state liquor store. Standing nearby were defendant and several other persons, all members of a gang known as the Moon gang. They swarmed around Wearing, accusing him of the recent stabbing of a member of their gang. Seized with panic, Wearing fled, only to be pursued and overtaken by Gwaltney and the other gang members. Appellant then plunged a knife into Wearing's back. Decedent was again stabbed as he attempted to enter an automobile, but who inflicted the latter wound does not appear. Wearing died soon thereafter. Based upon this evidence, the jury found Gwaltney guilty of murder of the third degree, and conspiracy.
Appellant contends that he is entitled to a new trial because of improprieties in the closing argument of the prosecutor.*fn2 We disagree and will affirm the judgments of sentence.
In his closing argument to the jury the prosecutor recited the general definitions of the crimes of murder, conspiracy and possession of an instrument of crime. He then argued that the evidence presented during the trial satisfied the respective elements of these crimes. Appellant does not say that the prosecutor misstated or confused the applicable law; rather, it is argued that such a reference to the applicable law in the closing by the assistant district attorney infringed upon the province of the court and unduly prejudiced the jury.
It is true, of course, that it is the role of the trial court to instruct the jury as to the law which applies to the case being tried. See e. g., Commonwealth v. McKetta, 469 Pa. 223, 227, 364 A.2d 1350, 1352 (1976); Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968); Commonwealth v. Smith, 221 Pa. 552, 70 A. 850 (1908). Thus it is not proper for a lawyer to argue to the ...