Nos. 525, 548 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Denying Relief Under the Post-Conviction Hearing Act, as of January Term, 1973, No. 701-703.
David S. Winston, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., filed a dissenting opinion.
Appellant, Robert Black, was tried before a judge and jury and found guilty of murder of the first degree, robbery and conspiracy in connection with the death of a Philadelphia druggist during an attempted robbery of his drug store. Post-verdict motions were denied and appellant was sentenced to life imprisonment. Represented by new counsel, appellant appealed his conviction to this Court. We affirmed the judgment of sentence. Commonwealth v. Black, 464 Pa. 604, 347 A.2d 705 (1975).
Thereafter appellant, again represented by new counsel, filed a petition under the Post Conviction Hearing Act (PCHA), 19 P.S. § 1180-1 to 1180-14 (Supp.1978-79). In his PCHA petition, appellant raised the issue of ineffectiveness of trial counsel (1) in not objecting to allegedly prejudicial remarks made by the prosecutor in his closing argument to the jury, and (2) in not requesting a charge on voluntary manslaughter. In addition, appellant alleged that his counsel on direct appeal was ineffective in not pursuing a claim
of ineffectiveness of trial counsel in these two respects. The PCHA court denied relief.
Since the PCHA court was appellant's first opportunity to allege ineffective assistance of his counsel on direct appeal, that claim is properly before us. E. g., Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). We agree with appellant that trial counsel was ineffective for not objecting to certain prejudicial remarks made by the prosecutor in his summation, and that counsel on direct appeal was ineffective in not alleging trial counsel's ineffectiveness in not doing so. We therefore reverse the order of the PCHA court and grant appellant a new trial, and need not address other issues raised by appellant.
The prosecutor's remarks in question are as follows:
"I say to you, the only way that you could possibly find Robert Black not guilty of murder in the first degree is if Sidney Adelman ...