Appeal from the Order of Superior Court dated October 15, 1984, Denying Reargument of a Panel Decision on August 10, 1984, which REversed the PCHA Court and Granted Defendant a New Trial for His 1973 First Degree Murder, Information Nos. 507-13, June Term, 1973, Court of Common Pleas of Philadelphia, Trial Division, Criminal Section 383 Pa. Superior Ct. 1, 482 A.2d 670 (1984).
Eric B. Henson, Deputy Dist. Atty., Gaele M. Barthold, Chief, Prosecution Appeals, Ronald Eisenberg, Philadelphia, for appellant.
James S. Bruno, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., did not participate in the consideration or decision of this case. Nix, C.j., files a concurring opinion. Flaherty, J., concurs in the result. Zappala, J., dissents.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
The Commonwealth appeals by allowance an order of Superior Court reversing an order of the Court of Common Pleas of Philadelphia, which had denied appellee post conviction relief under Section 5 of the Post Conviction Hearing Act.*fn1 By its order Superior Court remanded the case for a new trial. We hold Superior Court erred in determining that the prosecutor's remarks in his closing statement require a new trial for appellee. Therefore, we reverse and reinstate Common Pleas' order denying appellee's petition for relief.
Appellee was arrested in 1973 and charged with murder, aggravated assault with intent to kill, aggravated robbery and related offenses. On April 14, 1973, appellee entered a barber shop operated by William Gadsden. Mr. Gadsden and a customer, Michael Chambers, were in the shop at the time. Appellee, who was carrying a gun, announced a robbery. He then shot Mr. Chambers, who died as a result. Mr. Gadsden was shot once as he attempted to take appellee's gun. He was shot again as he fled the room, and a third time when appellee followed him into an adjoining room. Mr. Gadsden, who had known appellee for a number of years, recovered from his wounds and testified unequivocally to these facts at appellee's trial. Appellee presented no evidence at all. The jury found him guilty of murder in the first degree and various other offenses. He was sentenced on June 20, 1974, to life imprisonment for murder along with consecutive terms of imprisonment on the various other charges, some of which were concurrent with the life sentence. This Court affirmed the judgments of sentence on direct appeal. Commonwealth v. White, 466 Pa. 300, 353 A.2d 36 (1976).
On May 23, 1980, appellee filed the petition for post conviction relief which is presently before us. In it he asserts various ways in which trial counsel was ineffective. The Commonwealth denied these allegations. Following an evidentiary hearing, the post conviction hearing court denied relief in an order filed December 22, 1981. On August 10, 1984, Superior Court reversed and remanded the case for a new trial, 333 Pa. Super. 1, 481 A.2d 1190. We granted allocatur on the Commonwealth's petition asking us to consider the issue of unexplained delay as well as the merits of appellee's post conviction petition.
The record before us shows that Superior Court granted a retrial more than eleven years after the offense occurred. The Commonwealth contends that petitioner's failure to explain the lapse of four years between this Court's affirmance of his sentence on direct appeal and the filing of his post conviction petition requires denial of his
petition. The Commonwealth failed to raise this issue in the post conviction hearing court.*fn2 It would, therefore, be inappropriate for us to decide it on this record. Moreover, we have not decided that delay alone requires dismissal of a post conviction petition.*fn3 In Commonwealth v. Weddington, 514 Pa. 46, 522 A.2d 1050 (1987), we held that mere delay does not justify ...