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filed: January 11, 1980.


No. 308 Special Transfer Docket, No. 309 Special Transfer Docket, Appeal from Order of the Court of Common Pleas of Philadelphia, Criminal Division, Nos. 554 - 555 September Term, 1970 Nos. 256-257 September Term, 1972.


Stephen H. Serota, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief Appeals Division, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Roberts and Lipez, JJ.*fn* Lipez, J., files a concurring opinion.

Author: Roberts

[ 274 Pa. Super. Page 352]

In this appeal from denial of relief under the Post Conviction Hearing Act,*fn1 appellant contends that trial counsel was ineffective. We agree, reverse the order of the PCHA court and award appellant a new trial.

On March 27, 1972, a jury convicted appellant of two counts of murder of the first degree and one count each of burglary and robbery. After denying post-verdict motions, the trial court sentenced appellant to concurrent terms of life imprisonment on each of the charges of murder and concurrent terms of imprisonment of 10 to 20 years on each of the other counts. The Supreme Court, equally divided, affirmed the judgment. See Commonwealth v. Hamilton, 460 Pa. 686, 334 A.2d 588 (1975). Appellant obtained new counsel and filed a PCHA petition alleging ineffective assistance of counsel who had represented him at trial and on direct appeal.*fn2 After a hearing, the PCHA court denied the petition.

Appellant contends that trial counsel was ineffective for failing to object and request a mistrial when the prosecutor made the following remarks during closing argument:

"Our best witness isn't here today, but if the Bodensteins [the victims] were here today, they would say to you they didn't want to die, and who is this defendant that he can play God and decide and determine the day and time that

[ 274 Pa. Super. Page 353]

    they were to die. They had a business that they had worked on for eighteen years together, a part of the community, and this defendant along with Al Davis decided that it was time for them to give up their business. He made that decision along with Al Davis that it was time for them to lose all that they had worked for these eighteen years. Does he have the right to do that? Does he have the right to say whether anyone should go out of business? Does he have the right to say now is your time to die and I so decree it by my acts and actions? Does he? If you find this defendant not guilty after all that evidence and testimony presented in this case, then you are saying he does have that right to take that which others have worked and scuffled for and earned to satisfy his desire for beers and whiskey. Are you going to say that by allowing this defendant to walk out of here based on the evidence that you have heard, using your basis and God-given common sense? Well, if you do that, if you let him fool you, if you let him pull the wool over your eyes and say because I only went to the fifth grade I didn't know what I was doing, or that I couldn't have been a party to that, if you let him go scot-free based on this evidence, then I say to you David and May Bodenstein died in vain -- died in vain, and all the other David and May Bodensteins will die in vain --

[Defense counsel]: That's objected to, sir.

THE COURT: Sustained."

Appellant's counsel objected only at the end of the summation, and then was satisfied with a brief "sustained."

It is well established that comments such as these are prejudicial to the defense, that trial counsel should object to them and request a mistrial and that failure to take such action constitutes ineffective assistance. See Commonwealth v. Mayberry, 479 Pa. 23, 387 A.2d 815 (1978) (curative instructions inadequate where prosecutor emphasized that victim's mother would never see him again and implored jurors, as representatives of community, to demonstrate by verdict of guilty that they would not tolerate such killings);

[ 274 Pa. Super. Page 354]

(1975)) and on habeas corpus by the United States District Court for the Eastern District of Pennsylvania (See C.A. No. 76-543 (1976)) will begin to wend its weary way through the court processes; and all because the prosecutor had not learned his lessons from the decided cases. It is indeed appalling that our and other appellate courts have found it necessary to set aside so many convictions and grant new trials because of improper arguments and remarks. I therefore take this occasion to repeat what I said recently in a concurring opinion in Commonwealth v. Keith Barren, 273 Pa. Super. 492, 417 A.2d 1156 (1979) in the hope that in the future it will be helpful in reducing their number:

It is apparent that the adversary process in criminal trials, when left to the actions and judgment of trial counsel alone is not sufficient to protect the rights of both society and defendants.*fn1 Time and again we see the sorry spectacle of the failure of defense counsel to object to improper remarks of the prosecuting attorney, which failure, though waived on direct appeal, finally comes back to haunt us on ineffectiveness of counsel contentions.

The trial judge, in jury cases, "is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Querica v. United States, 289 U.S. 466, 53 S.Ct. 698, 699, 77 L.Ed. 1321, 1324 (1932). See also Commonwealth v. Claiborne, 175 Pa. Super. 42, 50, 102 A.2d 900 (1953). 75 Am.Jur.2d Trial S.87. It has long been recognized in this Commonwealth that the trial judge not only has the power, but in proper cases the duty as well to "supervise

[ 274 Pa. Super. Page 356]


*fn* Justice Samuel J. Roberts of the Supreme Court of Pennsylvania, and Judge Abraham H. Lipez of the Court of Common Pleas of Clinton County, Pennsylvania, are sitting by designation.

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