No. 27 SPECIAL TRANSFER DOCKET, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, No. 1200 August Term, 1976
Hugh C. Clark, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Cavanaugh, Watkins, Montgomery and Hoffman, JJ. Montgomery, J., files a dissenting opinion in which Hoffman, J., joins.
[ 284 Pa. Super. Page 603]
Appellant, Ebben Bullock, was convicted of third degree murder following a jury trial before the Honorable Matthew W. Bullock, Jr., of the Court of Common Pleas of Philadelphia County. After the denial of post-verdict motions and the imposition of sentence, appellant filed a direct appeal to the Supreme Court of Pennsylvania which thereafter transferred the appeal to be heard by a panel of our Court. The decision rendered by the panel*fn1 reversed the judgment of sentence and granted appellant a new trial. The Commonwealth then sought and obtained en banc reargument before our Court on November 6, 1979. Having reconsidered the case, we affirm the decision of the lower court and uphold appellant's conviction for third degree murder.
Appellant raises a single allegation of error: That his trial counsel was ineffective for failing to object to the allegedly prejudicial remarks made by the prosecutor during his summation to the jury and for failing to move for a mistrial on the basis of these statements.
[ 284 Pa. Super. Page 604]
According to the facts of the case, appellant and the deceased, Robert Berk, engaged in a heated argument on the evening of August 2, 1976, on the street in front of appellant's house. After a period of time, appellant went into his house and reappeared with two kitchen knives and proceeded to stab the deceased in the chest. Alene Bradley, a friend and neighbor of appellant, was an eyewitness to the stabbing. She testified that appellant was in possession of two knives, that she saw appellant's "hands go all over" when he faced the victim, that when she saw appellant make a motion towards deceased's chest, that she observed a "little flash," "like something shining in the light" in appellant's hands, that the deceased's chest was bleeding, and that she saw a knife with some blood on it in the hands of appellant.
Another witness, Rose Harrison, stated that appellant had been arguing with the deceased, that she observed appellant wielding a knife in each hand when he returned to the street, and that she never saw the deceased with a knife or any other weapon that night.
Dr. Demetri L. Castastavlas, the medical examiner, testified that he found a three to four inch "stab wound in the chest and a superficial cut in the right upper abdomen." He stated the cause of death was the "stab wounds of the chest."
Joseph Varozilchak, chemist for the Philadelphia Police Department, examined the knife which had been seized in appellant's house and found fibers and blood present on the blade. Comparing those fibers to the clothing of the victim, he concluded that the fibers on the blade matched the fibers from the sweater of the deceased.
Finally, appellant took the stand and testified that he argued with the deceased, that he went into his house to get the two knives because the deceased had a knife and threatened to kill him. Although appellant denied stabbing the deceased, he did state that his knife "hit [Berk]."
Appellant alleges that he was denied effective assistance of counsel at trial because his attorney failed to object to
[ 284 Pa. Super. Page 605]
four allegedly inflammatory comments made by the prosecutor during closing argument and also failed to move for a mistrial on the basis of these allegedly inflammatory statements.*fn2 The closing arguments of counsel were recorded and transcribed. Appellant claims prosecutorial misconduct with regard to four statements. In finding fault with the following excerpts, appellant asserts that it was ...