No. 1430 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal at No., 2642-2644, August Term, 1981.
Eduardo C. Robreno, Philadelphia, for appellant.
Stuart L. Haimowitz, Assistant District Attorney, Philadelphia, for Com., appellee.
Cavanaugh, McEwen and Cirillo, JJ.
[ 329 Pa. Super. Page 62]
This appeal is from a judgment of sentence imposed after appellant was found guilty by a jury of third degree murder and possessing an instrument of crime and sentenced to a term of imprisonment of from ten years to twenty years upon the murder conviction and to a consecutive term of imprisonment of from two and one-half years to five years for the weapons offense. Appellant, who is represented by new counsel, asserts that the trial assistant district attorney engaged in prosecutorial misconduct and that his two prior counsel*fn1 were ineffective. We affirm.
Appellant initially contends that "[t]he District Attorney engaged in prosecutorial misconduct when he argued to the jury that the defendant did not present all the evidence which counsel for the defense indicated in his opening address to the jury would be presented at trial." The record reflects that defense counsel, during the presentation of his opening address, stated:
We are also going to show or intend to show that . . . Pedro's life was threatened by [ ] the brother of the deceased. He fled the site.
When appellant failed to present evidence explaining his flight from Philadelphia to Lancaster as a result of the purported death threat, the assistant district attorney stated during his closing argument:
And we go back to something [defense counsel] told you in his opening argument. He told you he was going to show you how this defendant fled to Lancaster because he was threatened by the victim's family. Well, where was that? Did that ever come out? You never heard that evidence.
The immediate objection made by defense counsel was noted by the trial judge who, at the conclusion of the
[ 329 Pa. Super. Page 63]
closing argument, denied a motion by counsel for a mistrial and delivered to ...