215 Pa. Super. 188 | Pa. Super. Ct. | 1969
Dissenting Opinion
Dissenting Opinion by
Appellant together with two codefendants was convicted of robbery by a jury after a trial on June 17 and 18, 1968. At trial, there was testimony that one of the robbers carried a 22 caliber revolver and fired it twice during the robbery. The following colloquy occurred during the district attorney’s summation to the jury: “Mr. Prodoehl [defense counsel] : I think for the purpose of the record, the District Attorney, Mr. McEwen, made an analogous [sic] in summing up to the Jury. This analogy consisted of a 22. caliber re
Despite the court’s admonishment, the district attorney continued as follows: “Mr. MgEwen : Just so the record was clear, may I make clear on the record that I am talking about a 22 caliber revolver in this case and that a 22 revolver being sufficient to cause the death of a great American recently. If you will, the connection of a 22 caliber revolver is not in any sense referring to just some individual.” [Emphasis added.] The Court again admonished the district attorney.
In Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927), the Supreme Court said that when language is used by a district attorney which creates “a fixed bias and hostility toward the defendant, so that they [the jurors] could not fairly weigh in his behalf such circumstances of doubt, extenuation or degree of guilt that may be present in the case,” id. at 581, there are grounds for a mistrial.
In my view the remarks of the district attorney were so inflammatory that the jury could not fairly determine appellant’s guilt.
Senator Kennedy’s assassination had occurred only twelve days before trial. During the days following,
Nonetheless, the district attorney, even after being admonished by the court, compared appellant’s actions with those of Senator Kennedy’s killer. Such a statement standing alone, was improper, irrelevant and highly prejudicial. When viewed in light of the highly-charged emotional atmosphere in the county at the time, the remarks must be viewed as so prejudicial that the question of appellant’s guilt or innocence could not have been dispassionately viewed by the jury.
I would reverse the convictions and order a new trial.
Lead Opinion
Opinion
Judgment of sentence affirmed.