383 A.2d 899 (Pa. 1978), Commonwealth v. Young
| Date | 23 March 1978 |
| Citation | 477 Pa. 212,383 A.2d 899 |
| Docket Number | . |
| Parties | COMMONWEALTH of Pennsylvania v. John K. YOUNG, Appellant (two cases). |
| Court | Pennsylvania Supreme Court |
Page 899
Submitted Jan. 9, 1978.
[477 Pa. 214] Nicholas A. Clemente, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Dep. Dist. Atty. for Law, for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
OPINION OF THE COURT
EAGEN, Chief Justice.
On August 26, 1976, appellant, John K. Young, was found guilty of murder of the second degree, possession of an instrument of crime, robbery and burglary after a jury trial in Philadelphia. Post-verdict motions were subsequently denied and Young was
Page 900
sentenced to life imprisonment on the murder conviction and to a concurrent term of not less than ten nor more than twenty years on the burglary conviction. Sentence on the other convictions was suspended. These appeals followed. [*]
Appellant offered no testimony at trial. The Commonwealth's testimony established the following:
[477 Pa. 215] At approximately 6:30 a. m. on March 11, 1975, Miss Jacqueline Mack, of 2123 Etting Terrace, Philadelphia, Pennsylvania, heard the sounds of loud screaming and footsteps coming from the house next door wherein Marlene Mapp and her family resided. She also heard the voice of one of Mrs. Mapp's children crying out to leave his mother alone. Miss Mack telephoned the police and then telephoned next door. One of Mrs. Mapp's children, Larry Mapp, answered the phone and screamed his mother had been stabbed. Miss Mack then went to the rear door of the Mapp house and pushed it open. She was met by Larry who was covered with blood. The police arrived and found Marlene Mapp lying wedged against her front door at the foot of the staircase leading to the second floor. There was a trail of blood from a bedroom on the second floor down to the bottom of the staircase. A woman's purse was lying open on the living room sofa with its contents strewn about. The front door was locked and entrance to the house appeared to have been effected through the rear door by means of a coat hanger being inserted through a hole in the glass of a window next to the door and so manipulated as to unlatch the door.
A post-mortem examination established Marlene Mapp died from a deep cut of the neck which severed the jugular vein and the right subclavian artery.
Larry Mapp, six years old at the time of this incident but seven at the time of trial, testified he was sleeping in the same bed as his mother when he was awakened by voices and saw a person he described as "the boy" on the bed on his knees. He identified "the boy" as the appellant, John K. Young. Larry Mapp further testified that Young told his mother to tell him to take his five-year-old sister, Chantel, and leave the room. In the course of doing so, Larry saw Young pull out a knife. When this happened, he ran downstairs to try to find a knife with which to attack the intruder, but could find none. He then ran back upstairs with his sister to the other bedroom and Young then ran downstairs and out the back door with Larry running after [477 Pa. 216] him. Later, he saw his mother lying against the front door. He spoke to her but there was no answer. Larry also testified he recognized the intruder as a youth he had seen hanging out clothes in the backyard of the house to the rear of his own.
In the course of their investigation, police found a black scarf with stains of human blood in the backyard of the Mapp house, and in a search of the Young residence, pursuant to a search warrant, found three butcher knives with one bearing traces of human blood, a pair of pants, a pair of shoes and a washcloth, all of which bore stains of human blood.
The only assignment of error now posed is that in closing argument the assistant district attorney engaged in improper argument which denied Young a fair trial and an objective verdict.
Young first contends the assistant district attorney in his closing argument grossly misstated the testimony of Larry Mapp by saying that the witness saw Young slit his mother's throat when he was in another room as the stabbing occurred according to the testimony. As the trial court correctly noted, however, defense counsel did not, either during the closing argument for the Commonwealth or at any other time during the trial, point out this alleged impropriety of the assistant district attorney or seek to have it corrected in the minds of the jurors before they retired to deliberate. The first time this particular
Page 901
complaint was voiced was in post-verdict motions. Accordingly, this issue has not been properly preserved for appellate review. Commonwealth v. Gilman, 470 Pa. 179, 186, 368 A.2d 253, 256 (1977) (citing cases); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
Two additional instances of alleged improper argument by the assistant district attorney which have been properly preserved for review follow:
Young maintains that the assistant district attorney during closing argument "made reference that he did not know [477 Pa. 217] what was in the defendant's mind at the time of the alleged incident and also inferred that the reason for the lack of this knowledge was due to the fact that the defendant could not be questioned and had not testified."
The statement of the assistant district attorney upon which this is based was as follows:
"Well, we don't know...
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