No. 80-1-136, Appeal from the order (Judgment of Sentence) of the Court of Common Pleas, Criminal Division, of Erie County, at No. 1620 of 1976
John H. Moore (Court-appointed), William Scarpitti, Erie, for appellant.
Michael J. Veshecco, Dist. Atty., Shad Connelly, Erie, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., dissents.
This is an appeal from an order of the Court of Common Pleas of Erie County entered after an evidentiary hearing denying post-conviction relief. The court rejected appellant's claims that his trial attorneys were constitutionally ineffective in various ways. With respect to one of these claims, that trial counsel was ineffective for failing to object to prejudicial comments made by the prosecutor in his closing argument, we agree with appellant that the lower court erroneously rejected this claim and so reverse.
On October 21, 1976 appellant was convicted by a jury of murder of the first degree. A sentence of life imprisonment was imposed upon appellant following the conviction and the denial of post-trial motions. Soon after sentencing, the trial attorneys were granted leave to withdraw from the case and new counsel was appointed to perfect appellant's appeal. As directed by the trial court, appellant by his new counsel filed a Statement of Matters Complained Of On Appeal raising various claims of ineffectiveness by trial counsel and various trial errors. The common pleas court filed an opinion supporting its denial of the post-trial motions. That appeal resulted in a remand for an evidentiary hearing. Commonwealth v. Brown, 478 Pa. 628, 387 A.2d 665 (1978). After an evidentiary hearing held on August 16 and September 6, 1978, the trial court held, on January 7, 1980, that appellant's claims of his trial attorneys' ineffectiveness had no merit. This appeal followed.*fn1
Appellant argues that his trial attorneys were ineffective both in failing to object to and in failing to have recorded certain prejudicial and inflammatory remarks made by the assistant district attorney in his summation. The lack of an objection to alleged prejudicial remarks made during a summation which is not recorded renders the issue
waived and not properly preserved for appellate review on the merits. E. g. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978); Commonwealth v. Baranyai, 278 Pa. Super. 83, 419 A.2d 1368 (1980).
In order to sustain his burden of proving ineffective assistance of counsel, appellant was able to present alternate evidence at the evidentiary hearing of what the unobjected to prejudicial remarks were. Appellant produced a newspaper reporter from the Erie Morning News who was present during the prosecutor's summation and who subsequently wrote and had published an article in which he attributed several specific remarks to the prosecutor. At the evidentiary hearing the reporter, after testifying that he had no specific recollection of each thing that was said during the summations, reviewed his article to refresh his memory and stated that the remarks he quoted in the article "were made by [the assistant district attorney]. There is no question in my mind at all." In explaining his efforts in regard to the article he also stated:
Well, on covering a trial I'm not the stenographer, so I have to take all my notes in longhand and maybe in my own form, in shorthand, and whenever we use a quote I'm also under the impression there is a stenographer on hand and I try to be particularly careful when any sentences contributing [sic] to anybody are placed under direct quote so somebody can't say you misquoted me and here's a Court record. I have never been ...