No. 80-3-640, Appeal from the Order of the Superior Court dated December 7, 1979, at No. 1031 Oct. Term 1978, reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia at Nos. 54, 55, April Term 1976.
Eric B. Henson, Deputy Dist. Atty., Alan Sacks, Philadelphia, for appellant.
Holly Maguigan, Philadelphia, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., concurs in the result.
This is an appeal from an order of the Superior Court reversing the judgments of sentence imposed on appellee, Keith Barren, by the Court of Common Pleas of Philadelphia.
The lower court opinion appears at 273 Pa. Super. 492, 417 A.2d 1156 (1979). We now reverse.*fn1
On June 16, 1976, appellee was convicted after a two day jury trial of rape and statutory rape in the assault and sexual molestation of Helen Wells (hereinafter "victim"), an 11 year-old girl. The victim, her mother, one Inez McCollum, and appellee all resided in the same apartment. At trial, the victim testified that at approximately 1 a.m. on March 13, 1976, appellee approached her in the apartment and, armed with a knife, forced her to engage with him in sexual intercourse. Later, the victim further testified, appellee forced her into a nearby vacant building and raped her a second time.
After appellee's conviction no appeal was filed until May 16, 1977, when appellee, acting pro se, filed a petition seeking relief under the Post Conviction Hearing Act.*fn2 The P.C.H.A. court, upon reviewing the petition, ordered that counsel be appointed to represent appellee and granted leave allowing counsel to file post verdict motions nunc pro tunc. Appellee's new counsel filed post verdict motions raising issues of prosecutorial misconduct and ineffective assistance of counsel. These motions were denied on February 2, 1978. Appeal was taken to the Superior Court which in a divided panel reversed appellee's convictions and remanded his case for a new trial. The Commonwealth now appeals the Superior Court's decision.
At issue is whether three separate comments made by the prosecutor during his closing statement at appellee's trial were so prejudicial as to deny appellee a fair trial and compel the conclusion that his defense counsel was ineffective for failing to object to the comments. Because ...