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decided: May 27, 1987.


Appeal from Order of Superior court entered August 9, 1985, at No. 2453 Philadelphia 1984, reversing Judgments of Sentence of Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, entered August 23, 1984, at Nos. 2440-2442 March Term, 1983. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 514 Pa. Page 533]


This is an appeal by the Commonwealth from an order of the Superior Court reversing the criminal convictions of John Harvey, the appellee herein, and granting him a new trial.*fn1 Harvey had been tried and convicted in the Court of Common Pleas of Philadelphia County of first-degree murder and possessing an instrument of crime. The case was heard by a judge sitting without a jury, who later sentenced the defendant to life imprisonment for the murder and to a concurrent prison term of two and a half to five years for the companion conviction. We granted review to consider the Commonwealth's assertion that the Superior Court erred in granting a new trial on the ground that the prosecution had engaged in prejudicial misconduct during the course of trial.

In March of 1983 John Harvey was charged with murder, voluntary manslaughter and possessing an instrument of crime, in connection with the strangulation death of one Denise Madison. The matter came on for trial in August, 1983, at which time the defendant waived his right to a jury

[ 514 Pa. Page 534]

    trial and elected to have the case heard by the trial judge sitting as a jury.

The Commonwealth's evidence showed, inter alia, that on the afternoon of February 4, 1983, the body of Denise Madison was found in the bedroom of quarters she had shared with Harvey. When the police arrived at the scene they also observed that the bedroom was in a state of great disarray and that numerous small glassine bags were scattered about. Statements from neighbors led the police to seek Harvey, but they did not succeed in apprehending him until over two weeks later. Dr. Halbert Fillinger, assistant county medical examiner, testified that the cause of Ms. Madison's death was strangulation. He further stated that his examination of the body disclosed grooves on the victim's neck and extensive hemorrhaging in the neck area. According to Dr. Fillinger, the victim's neck had been subjected to a force so severe that it halted her airflow, as well as the flow of her venous and arterial blood.

The defendant testified in his own behalf, and admitted that he had caused Ms. Madison's death by wrapping a strap around her neck and holding it there. He also admitted that he avoided the police when they came to the scene shortly after the killing, and that he instead opted to observe their activities from the vantage point of a nearby roof. After watching the police remove Ms. Madison's body, the defendant went to a hotel. About sixteen days later he surrendered to the police. Despite those admissions, he contended that Ms. Madison's death was accidentally caused as a result of his trying to stop her from choking on a glassine bag of heroin she had swallowed. That account of the death was inconsistent with testimony from Dr. Fillinger that he found no such bag or other foreign agent in the victim's system when he examined her soon after her death.

During cross-examination of the defendant, the prosecutor asked him if he had read a written, out-of-court statement of a certain third person representing that the defendant had admitted murdering the victim. The court sustained

[ 514 Pa. Page 535]

    an objection to the question. In addition, the prosecutor frequently framed his questions to the defendant as to impute to him various negative traits of character. For example, the defendant was asked about his being "stealthy," a "con," a "deceiver," and a "fast and slick" talker. As to the above line of cross-examination the court also sustained objections from defense counsel. However, the prosecutor was allowed, over objection, to elicit from Harvey the fact of his having undergone treatment for drugs, even though there was no prior evidentiary predicate to justify that inquiry.

In the course of final argument, the Commonwealth's attorney more than once stated to the court that the defendant had lied in his testimony. Indeed, the prosecutor went so far as to assert that because unspecified evidentiary elements were missing from the case, such could only mean that the defendant did not tell the truth. The prosecutor also stated, during closing argument, that the victim's young child had been forced to watch his mother die at the hands of the defendant, and that the child would go through life with nightmares of the event. There was no evidence that the child witnessed the actual killing; nor does the record clearly indicate whether or not he was even home at the time. At another point in his closing argument, the prosecutor theorized that the defendant committed the killing while in a paranoiac state fired by a hunger for heroin. An objection to that statement was sustained on the ground that there was no evidence of the defendant being a heroin addict.

After the trial court had rendered the guilty verdicts mentioned at the outset of this opinion, the defense filed post-trial motions in arrest of judgment and for a new trial. Pursuant to those motions, the defendant claimed that the evidence was insufficient to sustain the convictions, and in the alternative, that he was entitled to a new trial because the prosecutor had engaged in misconduct which denied him a ...

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