No. 290 Special Transfer Docket, No. 291 Special Transfer Docket, Appeal from Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Nos. 1783 - 1787 January Term, 1977.
Robert Scandone, Philadelphia, for appellant.
Brian Rosenthal, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hoffman, Roberts and Lipez, JJ.*fn*
[ 273 Pa. Super. Page 464]
On June 10, 1977, a jury convicted appellant of murder of the first degree, robbery, weapons offenses and conspiracy. After denying post-verdict motions, the trial court imposed sentences of life imprisonment for murder, consecutive terms of imprisonment of 10 to 20 years for robbery and 2 1/2 to 5 years for possession of an instrument of crime, and 10 years probation on the conspiracy charge. Appellant contends that (1) systematic exclusion of veniremen opposed to the death penalty denied him his right to trial by a jury of his peers; (2) the prosecutor in summation improperly commented on his silence at time of arrest; (3) the trial court erred in allowing admission of rebuttal evidence that did not contradict his testimony; and (4) the trial court erred in failing to grant a suppression hearing at trial concerning a witness' identification of appellant. We affirm.
[ 273 Pa. Super. Page 465]
On January 5, 1977, two men entered the clothing store of the victim. One demanded that the victim "give us everything you have." The speaker carried a silver revolver. The speaker then shot the victim several times, causing his death. The victim's brother, Myer Cohen, was also in the store and saw the shooting. Appellant, his brother, Tyrone, and a third man, William Allen, were charged with the crime. Allen testified that he remained outside as a lookout while appellant and Tyrone entered the store and that appellant was carrying a silver pistol. Appellant testified that Tyrone was not involved in the incident, that he and Allen entered the store and that Allen fired the fatal shots. Appellant himself was wounded in the head during the shooting.
Appellant contends that systematic exclusion of veniremen opposed to the death penalty denied him a fair trial. Because appellant did not receive a capital sentence, we need not determine whether veniremen were improperly excluded because of their opposition to capital punishment. See Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975).
Appellant argues that the prosecutor improperly commented on his silence at time of arrest. Commonwealth evidence established that three officers, one on foot and two in a car, chased appellant from the scene of the shooting before apprehending him several blocks away. Appellant testified that he was not chased and did not know that the police wanted him until his arrest. During summation, the prosecutor stated:
[ 273 Pa. Super. Page 466]
"No one could have mistaken the fact in broad daylight on January 5, at 1:45 in the afternoon. You would have known if a police officer was behind you chasing you down the street. You would know when he yelled at you, 'Halt. Police!' and you kept running. You would know when you heard patrol cars coming up, when you see other officers chasing you. You would not mistake the fact you are being chased, and, Keith Robinson could not have mistaken the fact that he was being chased. But he did Page 466} not stop and he did not say, 'Hey, I wasn't involved in this robbery. I got shot myself. I ...