Nos. 35 & 277 January Term, 1977, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, granting Motion for a New Trial on Indictment Nos. 898-900, June Term, 1975
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Maxine Stotland, Asst. Dist. Atty., Philadelphia, for appellant.
Marilyn J. Gelb, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Dennis White was convicted in a jury trial of murder of the third degree for the shooting death of one Thomas Sumpter. Post-trial motions were filed and argued before the trial court, and on July 13, 1976, White's motion for a new trial was granted on the ground that a testimonial reference to White's decision to remain silent after having given a partial oral statement to the police constituted reversible error.*fn1 From the lower court's order granting a new trial, the Commonwealth has taken this appeal.*fn2
As with a denial of a motion for new trial, so with the grant of such a motion, our review is limited to ascertaining whether the lower court abused its discretion or committed an error of law. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Morales, 458 Pa. 18, 326 A.2d 331 (1974); Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974). In the case at bar, we find that it did neither, and accordingly we affirm.
The record shows that the killing of Thomas Sumpter occurred inside the Matador Inn in Philadelphia at approximately midnight on May 17, 1975. Shortly before the killing,
White had been involved in an incident involving the shooting of one Martin Sanders outside the Inn. White was arrested in the area of the Inn and taken to the Police Administration Building. He was there interviewed for slightly over an hour by a detective, D. Bennett. There, White waived his constitutional rights and, in the course of an interrogation conducted by Detective Bennett, gave an arguably exculpatory statement. Bennett was called as a Commonwealth witness at trial. He testified that White voluntarily waived his constitutional right to remain silent, that he gave a three-page statement, and that White refused to read or sign the statement. The examination of the witness then continued as follows:
"Q. Would you tell us what happened at that point?
A. I finished page three, a question, the defendant answered the question and at that time the defendant said that, ' He had already done enough to hurt ...