Appeal No. 41, January Term, 1977, from the Order of the Superior Court at Nos. 1219-1221 October Term, 1972, Affirming the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Trial Division, Criminal Section, Imposed on Indictments Nos. 1109, 1110 and 1113, December Sessions, 1970.
Benjamin Lerner, Defender, John W. Packel, Chief, Appeals Div., Jonathan Miller, Asst. Defender, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Maxine J. Stotland, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., filed a dissenting opinion. Nix, J., dissents.
This is an appeal from appellant's conviction of charges arising out of a drugstore robbery which took place in Philadelphia on November 3, 1970. Appellant contends that his trial counsel was ineffective because he failed to raise in post-verdict motions an issue concerning improper remarks made by the prosecutor during his closing argument. Specifically, appellant points to the following portion of the transcript:
"Mr. Cannon: [prosecutor] . . . Grady Caesar did enter that store; he did rob, along with Frank Hairston and Joyce Turner, Harold Cohen. He has lied to you before --
Mr. Capone: [defense counsel] Objection and move for a mistrial.
The Court: Sustain your objection, deny your motion for a mistrial. I will instruct the jury at the time of my charge that the question of credibility is within their province and they will have to examine all of the testimony in the case, and then make their final determination.
You should consider the arguments of counsel, but I will give you the law on the question of who is a credible witness and what tests you may wish to apply to determine whether a witness is credible or not. My statement of the law may or may not agree with what counsel in their closing arguments have said to you the law is, but you will disregard what either counsel said to you as to what the law is ...