No. 212 March Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal, of Erie County, at No. 637 of 1978
Leonard G. Ambrose, III, Philip B. Friedman, Ambrose & Friedman, Erie, Edward A. McQuoid, Pittsburgh, for appellant.
Michael J. Veshecco, Dist. Atty., Paul J. Susko, Asst. Dist. Atty., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., joins in the opinion of the court and files a separate concurring opinion, which Flaherty, J., joins. Roberts, J., files a dissenting opinion.
Appellant, Willie James Beavers, was convicted by a jury of murder of the third degree for the shotgun slaying of Earl Denard. Post-verdict motions were denied and appellant
was sentenced to a prison term of eight-to-sixteen years. This direct appeal followed.
Appellant first argues that the trial court erred in denying appellant's motion for a mistrial following certain cross-examination of the appellant by the prosecutor. During cross-examination of appellant, the following exchange occurred:
"BY MR. PALMISANO [Assistant District Attorney]:
"Q. Let me just ask you this, Mr. Beavers. Earl Denard, he's the victim. Right?
"Q. He got shot that day in your place.
"Q. You had the gun that shot him.
"Q. And you're alive, so you can come in and tell these people what your version of it is, isn't it?
"A. It's the true version.
"Q. But Earl Denard, he's the victim; he can't be here to tell these people what took place, can he?
"MR. AMBROSE: I would object to that, Your Honor.
"THE COURT: Objection sustained.
"MR. AMBROSE: That's improper and it's prejudicial and I move for a mistrial on that.
"THE COURT: I would deny your motion for a mistrial but, members of the jury, you should understand that the last phraseology, so-called question by the District Attorney, is improper and should be disregarded by you. It's more a matter for argument than anything else.
We have, on numerous past occasions, held improper any remarks by a prosecutor concerning the "testimony" a homicide victim would have given had he or she not been slain. For instance, in Commonwealth v. Lipscomb, 455 Pa. 525, 526-27, 317 A.2d 205, 206 (1974), we granted a new trial where the prosecutor argued during closing remarks that:
"You know, my best witness isn't here today. But if he could come back, if Mr. Sweeney could come back and sit in this chair and face you, the jurors, I believe he would say, 'I didn't want to die. I was only 59 years of age. I think I had a number of years ahead of me, I didn't want to die. I was just walking along the street, a friend had been kind enough to give me a little bag of groceries to help me out because I was unemployed at the time, and I was on my way home, walking the route I have walked many, many times from my friend's house.
"'I didn't want to die. I didn't know this would be my last walk. I didn't know that a bunch of hoodlums and animals would pounce upon me and tear me apart and would cause my blood to stream out on the sidewalk and beside a tree, on the ice and the water. I tried to save myself. I got up, I tried to put my little belongings in my bag, but I couldn't get them. But, I walked towards home, the only route I knew for years, and I got to my house and I gave out; I gave out, I ran out of gas, and so I just lay there with my back to the steps and my head resting against it. My friend had given me a couple of Reader's Digests which I dropped on the steps, filled with blood. I didn't want to die. Why did I have to die? . . .'
"And I think Mr. Sweeney would say, 'The only way you couldn't find this defendant guilty of murder of the first degree is for me to come alive again before your very eyes and walk out of that door to my house.'"
Similarly, in Commonwealth v. Harvell, 458 Pa. 406, 409, 327 A.2d 27, 29 (1974), we reversed ...