Appeal from the Judgment of Sentence March 12, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 3036-3039.
Thomas Bruno, II, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Popovich and Roberts, JJ. Popovich, J., files a dissenting opinion.
[ 358 Pa. Super. Page 610]
This is an appeal from a judgment of sentence for first-degree murder and related offenses. At closing argument, the prosecutor told the jury "if you acquit, (these defendants) go never to come back . . ., never to have to answer again, (but) . . . if you convict . . . there are appeals and there may be reversals . . .". Because this argument improperly urged upon the jury a bias in favor of conviction, appellant was denied his right to a fair trial. Accordingly, we vacate the judgment of sentence and remand for a new trial.*fn1
[ 358 Pa. Super. Page 611]
Appellant and his co-defendant, Derrick Simmons, were charged with homicide, conspiracy and possession of an instrument of a crime in the November, 1979 stabbing death of William Grant Johnson. Michele Williams, who was 14 years old when the stabbing occurred, testified for the Commonwealth that she watched from the front door of her house as across the street appellant, his co-defendant and possibly others, stabbed Johnson.*fn2 Appellant introduced the conflicting testimony of Allene Freeman, who said that she saw the victim, already stabbed, stagger from the corner of Ms. Williams' street to the front of her residence. Appellant also introduced two alibi witnesses, who testified that they were with appellant at his mother's funeral when the stabbing was alleged to have occurred.
During closing argument at their July, 1983 trial, the prosecutor told the jury
if you acquit both these gentlemen, they go never to come back, never to see this charge and never to have to answer again. This is final. If you convict them of first-degree murder or a lesser degree depending upon your own view and based on the evidence, of course, there are appeals and there may be reversals later on because of evidentiary problems . . . .
The trial court immediately interrupted the prosecutor's closing, saying: "Excuse me, Mr. McGill (the prosecutor). I really do think that you ought to add that the implications of a verdict should play no role in their reaching a verdict." The court's remarks clearly were directed to the prosecutor, not to the jury.
After the prosecutor completed his closing argument, both defendants objected at side bar to his statement that their convictions could be reversed on appeal. The trial court agreed that the statement was improper, telling the prosecutor that "you can't tell them (the jury) ...