No. 10, January Term, 1979, Appeal from Judgment of Sentence of Philadelphia County, Trial Division, Criminal Section, November Term, 1977, Nos. 1367 and 1369
John Paul Curran, Philadelphia (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Nancy Wasser, Philadelphia, for appellee.
Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., did not participate in the consideration or decision of this case. Larsen, J., filed a dissenting opinion in which Kauffman, J., joined.
We are again faced with a challenge to the propriety of the remarks of a prosecutor during his summation to the jury. For the reasons that follow we are constrained to find that the learned trial judge erred in failing to grant the timely motion for mistrial pressed by the defense.
Appellant, Stephen Shain, was convicted by a jury of murder of the first degree and possessing an instrument of crime -- generally. Following the dismissal of post-verdict motions, appellant was sentenced to life imprisonment for the first degree murder conviction and to a concurrent term of two and one-half to five years imprisonment on the
weapons offense.*fn1 In this direct appeal the sole claim advanced is directed to the asserted impropriety of the prosecutor's closing statement. Specifically, objection was made, inter alia, to the prosecutor's argument to the jury that they could find that the killing resulted from a homosexual motive. It is contended by appellant, and we agree, that the record does not provide a basis for drawing such an inference.
At approximately 2 p. m., on November 9, 1977, the body of the decedent was discovered lying face down in a pool of water, in a heavily weeded area near 62nd Street and Woodland Avenue, in the City of Philadelphia. The victim was a male, five feet five inches in height, weighing 129 pounds, who had received fifty-seven (57) stab wounds, to the back, neck and shoulder areas. The decedent's blood alcohol level was found to be .17 and he was fully clothed when discovered.
The Commonwealth established the circumstances surrounding the killing from admissions made by appellant to
his uncle, Mr. Morrow, and a statement given to the police by appellant at the time of his arrest. Mr. Morrow testified that appellant woke him at or about 3:00 or 3:30 a. m. on November 9, 1977 and told the witness that he, appellant, had just killed a man. Appellant, who appeared to be intoxicated, stated that three Puerto Ricans tried to rob him, that one of them slapped him and that he stabbed the person who had struck him. At first the witness dismissed the conversation as being fantasy. However, later during the day after receiving further information which established that a killing had in fact occurred, Mr. Morrow went to the police and reported what he had been told by appellant. After his arrest for this crime, appellant provided the police with the following version of the events.
This kid came walking up 62nd Street towards Woodland. As he was coming by the ramp Nicky seen him and called him. The guy came over and said hi. He looked like he was drunk; I didn't get his name. So, he sat down with us and I gave him one of my beers. The kid was talking to Nicky, he showed him a picture of something. Then Nick put his arm around him and said, 'C'mon, let's take a walk down the ramp.' So, I said, 'Where you going, what's up', and he didn't say nothing. So, we all walked down the ramp. I think I took a leak before we went down the ramp. Then as we were walking down the ramp, I was drinking my beers; the kid that was with Nicky turned around and slapped me in my face. I snapped out and pulled my knife out. I started stabbing the guy, the guy was holding on to the front of my coat. Then he just fell. There was water all around, he fell in the water and I didn't see no bubbles, it looked like he was breathing if you ask me. That's when Nicky said, 'f . . . it,' that's when I left. I went up to the top of the ramp, picked my beer up, put it in the bag and took it home. When I got home I woke my Uncle Jimmy and told him I think I killed a guy, I don't know.
On cross examination, a witness called by the defense, Ms. Rose LaGrotta, also stated that immediately before his arrest,
appellant told her he had stabbed a man who had "called him a lot of names." The murder weapon was ...