No. 136 Philadelphia, 1982, Appeal from the PCHA Order of December 22, 1981 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 507-513 June Term, 1973
James S. Bruno, Norristown, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Montgomery and Cercone, JJ.
Appellant, Aaron White, takes this appeal from the lower court's denial, following a hearing, of appellant's Post Conviction Hearing Act (PCHA)*fn1 petition. Appellant makes but on argument: Whether trial counsel was ineffective for failing to object to certain remarks made by the prosecutor during his summation. We find appellant's argument to have merit and we reverse.
Following a robbery and shooting on April 14, 1973, in Philadelphia, appellant was arrested and subsequently convicted
on February 5, 1974 on charges of first degree murder, two counts of aggravated robbery, assault and battery, aggravated assault and battery and assault with intent to kill. Post-verdict motions were filed, argued and denied, and on June 20, 1974, appellant was sentenced to life imprisonment for the first degree murder conviction, plus two consecutive terms of ten to twenty years for the aggravated robbery convictions, and two concurrent terms of three and one half to seven years for the remaining convictions. Appellant filed a direct appeal to the Supreme Court of Pennsylvania, and that Court affirmed the conviction. Commonwealth v. White, 466 Pa. 300, 353 A.2d 36 (1976). Thereafter, on May 23, 1980, appellant filed the herewithin PCHA petition, alleging ineffective assistance of trial counsel. Following a hearing, the court denied relief by opinion and order, dated December 22, 1981. This appeal followed.
Appellant now argues that trial counsel was ineffective for failing to object to certain prejudicial remarks allegedly made by the prosecutor during his closing address to the jury. Specifically, appellant cites these portions of the prosecutor's closing address:
(a) ". . . so just as Michael Chambers one of my best witnesses wasn't there to testify today, because he's in his grave." (N.T. Trial 457)
(b) "And he did it, ladies and gentlemen, for a lousy sixty dollars or seventy dollars and a watch. And he left Mrs. Chambers and her four children fatherless." (N.T. 469)
(c) "And I say to you, ladies and gentlemen, the only way that you can fail to bring back a verdict of murder in the first degree is if Michael Chambers comes walking ...