No. 3 Special Transfer Docket, Appeal from Order dated January 31, 1979, in the Court of Common Pleas of Dauphin County, Criminal Division, No. 391 of 1970
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* This decision was reached prior to the death of Manderino, J.
[ 273 Pa. Super. Page 126]
Appellant was found guilty of murder of the first degree by a jury trial on May 15, 1970 and sentenced on March 1, 1971, to a term of life imprisonment for the shooting death of his wife. The Pennsylvania Supreme Court affirmed the conviction. Commonwealth v. Morgan, 448 Pa. 494, 295 A.2d 77 (1977). On September 27, 1978, appellant filed a Post Conviction Hearing Act Petition with the Dauphin County Court of Common Pleas alleging trial counsel's ineffectiveness and the ineffectiveness of his appellate counsel. The court denied appellant's PCHA petition and this appeal followed.
Appellant claims that he was denied his right to representation by competent counsel due to trial counsel's failure to object to questions that were asked appellant by the prosecuting attorney on cross-examination. The unobjected to questions which appellant believes established his ineffectiveness of trial counsel claim were:
"Q. Isn't it a fact that your wife was cooking dinner when you 'murdered' her?
Q. Are you telling us that she wasn't preparing any food at the time she was 'murdered'?"
The Commonwealth on the other hand submits that these two isolated utterances of the word "murdered" by the prosecutor in a trial which consumed five days and consisted of more than three hundred pages of testimony did not so bias the jury towards that appellant that a true and just verdict was not rendered. We agree.
[ 273 Pa. Super. Page 127]
The context in which the questions were asked is as follows:
"Q. You said that you wanted to eat dinner, and your wife wouldn't cook for ...