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COMMONWEALTH PENNSYLVANIA v. RAYMOND E. SMITH (07/08/81)

decided: July 8, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
RAYMOND E. SMITH, APPELLANT



No. 113 January Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at Nos. 532-533 May Term, 1978

COUNSEL

Stanley Bashman, Philadelphia (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Ann Lebowitz, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ. Roberts and Flaherty, JJ., file dissenting opinions.

Author: Per Curiam

[ 494 Pa. Page 519]

OPINION OF THE COURT

Appellant, Raymond E. Smith, was convicted by a jury of murder of the third degree for the beating death of Nadine Price. Post-verdict motions were denied and appellant was sentenced to a prison term of ten to twenty years. This direct appeal followed.

Appellant raises but two issues on this appeal. First, he argues that the suppression court erred in refusing to suppress

[ 494 Pa. Page 520]

    a statement which he gave to police shortly after his arrest. Second, appellant argues that the prosecutor impermissibly referred to previously suppressed evidence during her closing argument to the jury and that the curative instruction by the trial court was insufficient. We have reviewed the record and find that neither claim is sufficient to entitle appellant to a new trial.

Judgment of sentence is affirmed.

ROBERTS, Justice, dissenting.

Once again a majority condones improper prosecutorial comment during closing argument on the theory that such comment was a "response" to comments of defense counsel. For the reasons set forth in Commonwealth v. Brown, 490 Pa. 560, 574-78, 417 A.2d 181, 188-190 (1980) (Roberts, J., dissenting), as well as Commonwealth v. Perillo, 474 Pa. 63, 73-74, 376 A.2d 635, 640-41 (1977) (Roberts, J., concurring), the time surely has come ...


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