No. 1611 Philadelphia, 1981, APPEAL FROM THE PCHA ORDER OF MAY 28, 1981 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIV., CRIMINAL SECTION NO 1184 MAY 1971
Christopher G. Bokas, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Cavanaugh and Cirillo, JJ. Cavanaugh, J., files a concurring opinion.
[ 306 Pa. Super. Page 519]
This is an appeal from an Order of the Court of Common Pleas of Philadelphia County, denying the appellant's Petition for Relief under the Post Conviction Hearing Act.*fn1
On April 5, 1971, the appellant, Charles Strickland, was arrested by Philadelphia police and charged with the murder of one George Smith. The appellant confessed the murder to police shortly after his arrest. Subsequently, the appellant's trial counsel, A. Benjamin Johnson, filed a Motion to Suppress the confession as involuntary. On September 27,
[ 306 Pa. Super. Page 5201971]
, following an evidentiary hearing, the motion was denied by the Honorable James T. McDermott.
The appellant's trial before the Honorable Gregory G. Lagakos and a jury commenced on June 23, 1972. At the trial the Commonwealth introduced the appellant's confession as well as a letter written by the appellant to his uncle, in which he expressed concern about the police locating a .25 caliber gun. On July 7, 1972 the jury returned a verdict of guilty of murder in the first degree.*fn2 Motions for a New Trial and in Arrest of Judgment were filed and argued before a court en banc. These post-trial motions were denied and thereafter the court imposed a sentence of life imprisonment upon the appellant.*fn3
The appellant, represented by trial counsel, filed a direct appeal to the Supreme Court of Pennsylvania.*fn4 That Court found that the trial court had employed an improper standard in determining whether the appellant had standing to contest the admissibility of the self-incriminating letter. Therefore, the Supreme Court remanded the case to the trial court for an evidentiary hearing consistent with its opinion. Commonwealth v. Strickland, 457 Pa. 631, 326 A.2d 379 (1974).
In accordance with the mandate of the Supreme Court, an evidentiary hearing was held before the Honorable David N. Savitt on January 17, 1975. The appellant was represented at the hearing by Mr. Johnson. On January 23, 1975 Judge
[ 306 Pa. Super. Page 521]
Savitt denied the appellant's Motion to suppress the letter. No appeal was taken from that decision.
On December 6, 1979 the appellant, represented by Joel S. Moldovsky, filed a Petition for Relief under the Post Conviction Hearing Act. On May 28, 1981, following a hearing before the Honorable Edward J. Blake, relief was denied. New counsel was appointed and this appeal followed.
The appellant's first contention on appeal is that the assistant district attorney made prejudicial and improper remarks to the jury during his closing argument.
Our Supreme Court has stated:
Even where the language of the prosecuting attorney is intemperate, uncalled for and improper, a new trial is not required unless "its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict."
Commonwealth v. Burton, 491 Pa. 13, 22, 417 A.2d 611, 615 (1980), Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).
Specifically, the assistant district attorney remarked in his closing argument to the jury:
And this human life wasn't taken as in sickness. It was taken by a self-appointed executioner sitting in this courtroom. He has judged and decreed who is going to live and who is going to die.
This reference to the appellant as an "executioner", though improper, was supported by the evidence and was not so prejudicial as to make it impossible for the jury to render a true and proper verdict. See: Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978); also, Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980).
The assistant district attorney further stated in his closing argument at trial:
I'll tell you at least my feelings as to motive . . . He was probably dealing in drugs at the time this homicide took place. And what ...