No. 292 Special Transfer Docket, No. 293 Special Transfer Docket, Appeal from Order of the Court of Common Pleas of Philadelphia, Criminal Section, No. 2079, 2078, December Term, 1973.
Timothy P. Booker, 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*
[ 274 Pa. Super. Page 611]
In this appeal from denial of relief under the Post Conviction Hearing Act,*fn1 appellant contends that trial counsel was ineffective. We affirm.
On August 19, 1974, a jury convicted appellant of murder of the first degree and criminal conspiracy. After denying post-verdict motions, the trial court sentenced appellant to concurrent terms of imprisonment for life for murder and 5 to 10 years for conspiracy. The Supreme Court affirmed. See Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976). Appellant obtained new counsel and filed a PCHA
[ 274 Pa. Super. Page 612]
petition alleging ineffective assistance of trial counsel.*fn2 The PCHA court denied relief.
Appellant asserts that trial counsel was ineffective for failing to object to part of the prosecutor's summation:
"And it is evident that the only thing really standing between the defendant and the appropriate verdict of guilty of murder was a well-meaning, sympathetic potential [sic] juror who would look upon him in a calm, peaceful surroundings [sic] of this courtroom rather than the reality of it through the eyes of Domingo Martinez back on November 10, 1973, out there at 6th and Oxford Streets when he is being attacked by a pack of wolveslook at it through the eyes of the jury who envisions [sic] the defendant in this courtroom, sitting there not doing anything today, not challenging them in any way, and forgive him.
"But that's not the jury's function, to forgive or to punish. The jury's function is only to find the facts. Questions of forgiveness and punishment are to be left in the good, capable hands of His Honor, Judge Malmed, and the law that he represents."
Appellant argues that these comments impermissibly expressed the prosecutor's opinion on guilt and unfairly prejudiced the jury by referring ...