No. 85 Special Transfer Docket, Appeal from Judgment and Sentence of the Court of Common Pleas, Trial Division, Criminal Section Philadelphia County, April Sessions, 1976, No. 2114.
Hugh C. Clark, Philadelphia, for appellant.
Robert V. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, O'Brien and Cirillo, JJ.*fn*
[ 276 Pa. Super. Page 430]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Civil Division, Trial Section, by the defendant-appellant, Eddie Stevens, after his conviction on the charge of third degree murder, and from the denial of posttrial motions. The defendant was sentenced on February 22, 1977 to a term of ten (10) years to twenty (20) years imprisonment. This is a direct appeal by the defendant.
On February 29, 1976, the defendant and the victim, one William Frank Talley, were inside private premises owned by one Robert Green. Other individuals were also present, many of whom were engaged in drinking and gambling. An argument erupted between the defendant and the victim over which of them would reveal his name to the other first. The defendant then pulled a gun on the visitor and shot him in the head and neck area three times at point blank range. One of the shots struck the victim in the right side of his head, slightly below and behind the right ear. The victim died as a result of these wounds.
[ 276 Pa. Super. Page 431]
After the shooting the defendant fled the premises. He was arrested for the offense on April 9, 1976 in South Carolina and returned to Philadelphia County to stand trial. On October 14, 1976, a jury found him guilty of third degree murder. On appeal defendant raises three issues.
Defendant's first assignment of error is that it was reversible error for the prosecutor to state in his opening argument to the jury that he would prove that the defendant shot the victim for no good reason. Defendant argues that the prosecutor was expressing his personal opinion as to the reasons or, in this case, the absence of reasons for the defendant committing the homicide. This claim is devoid of merit. In his opening remarks to the jury a prosecutor may make fair deductions from the evidence expected to be presented during the testimony. Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973). He may not make remarks which are mere assertions intended to inflame the passions of the jury. Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970).
In the instant case, unlike the situation in Fairbanks, supra, where the prosecutor alluded to hearsay statements which insinuated that the defendant was an "enforcer" or "executioner" for the "black mafia" in his opening remarks, the prosecutor's statement to the effect that the defendant shot and killed victim "for no good reason" was a fair deduction from the evidence expected to be presented. Indeed the testimony established that the defendant shot the victim during an argument over who was to be the first to reveal his identity to the other. This was not a good reason to shoot the victim. Therefore, the prosecutor's remark was not improper. See Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978).
Defendant's second contention is that the trial court erred when it permitted the Commonwealth to present a witness in rebuttal of one of defendant's witnesses. During the trial, Robert Green testified for the Commonwealth ...