Com. v. White

Decision Date15 October 1984
Citation333 Pa.Super. 1,481 A.2d 1190
PartiesCOMMONWEALTH of Pennsylvania v. Aaron WHITE, Appellant.
CourtPennsylvania Superior Court

James S. Bruno, Norristown, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before BROSKY, MONTGOMERY and CERCONE, JJ.

CERCONE, Judge:

Appellant, Aaron White, takes this appeal from the lower court's denial, following a hearing, of appellant's Post Conviction Hearing Act (PCHA) 1 petition. Appellant makes but on argument: Whether trial counsel was ineffective for failing to object to certain remarks made by the prosecutor during his summation. We find appellant's argument to have merit and we reverse.

Following a robbery and shooting on April 14, 1973, in Philadelphia, appellant was arrested and subsequently convicted on February 5, 1974 on charges of first degree murder, two counts of aggravated robbery, assault and battery, aggravated assault and battery and assault with intent to kill. Post-verdict motions were filed, argued and denied, and on June 20, 1974, appellant was sentenced to life imprisonment for the first degree murder conviction, plus two consecutive terms of ten to twenty years for the aggravated robbery convictions, and two concurrent terms of three and one half to seven years for the remaining convictions. Appellant filed a direct appeal to the Supreme Court of Pennsylvania, and that Court affirmed the conviction. Commonwealth v. White, 466 Pa. 300, 353 A.2d 36 (1976). Thereafter, on May 23, 1980, appellant filed the herewithin PCHA petition, alleging ineffective assistance of trial counsel. Following a hearing, the court denied relief by opinion and order, dated December 22, 1981. This appeal followed.

Appellant now argues that trial counsel was ineffective for failing to object to certain prejudicial remarks allegedly made by the prosecutor during his closing address to the jury. Specifically, appellant cites these portions of the prosecutor's closing address:

(a) "... so just as Michael Chambers on of my best witnesses wasn't there to testify today, because he's in his grave." (N.T. Trial 457)

(b) "And he did it, ladies and gentlemen, for a lousy sixty dollars or seventy dollars and a watch. And he left Mrs. Chambers and her four children fatherless." (N.T. 469)

(c) "And I say to you, ladies and gentlemen, the only way that you can fail to bring back a verdict of murder in the first degree is if Michael Chambers comes walking through those doors. Shall we wait?" (N.T. 469)

Appellant asserts that the above remarks were unduly prejudicial and inflamatory, and that trial counsel did not have a reasonable basis designed to effectuate his client's interests when he failed to object to these arguments. We agree. The Supreme Court has repeatedly condemned language such the above. Commonwealth v. Brown, 496 Pa. 86, 436 A.2d 165 (1981); Commonwealth v. Evans, 479 Pa. 100, 387 A.2d 854 (1978); Commonwealth v. Mikesell, 475 Pa. 589, 381 A.2d 430 (1977); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974); Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203 (1936). We therefore find appellant's argument to be meritorious.

The Commonwealth, however, contends that appellant has waived his opportunity to raise the above issue owing to appellant's unexplained delay of four years between the time that his direct appeal was finally litigated and the filing of his PCHA petition. In support of its argument, the Commonwealth cites the cases of Commonwealth v. Shaffer, 498 Pa. 342, 354, 446 A.2d 591, 597 (1982) (Roberts, J. concurring, joined by O'Brien, C.J. and Nix J.); Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. Kale, 312 Pa.Superior Ct. 69, 458 A.2d 239 (1983).

However, we find these cases to be distinguishable from appellant's for the reason that all three pertain to petitions to withdraw a guilty plea long after sentence has been handed down; the general rule in cases such as these is that a person must establish a showing of prejudice on the order of manifest injustice before withdrawal of the plea is properly allowed. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). 2

The Commonwealth further argues that language such as that at issue in the instant case was not condemned by the Supreme Court until the decision of Commonwealth v. Lipscomb, supra, decided on March 25, 1974. The Commonwealth points to the fact that appellant was convicted on February 5, 1974, prior to the L...

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2 cases
  • Com. v. McAndrews
    • United States
    • Pennsylvania Superior Court
    • January 28, 1987
    ...petition. The court found in a similar fashion in Commonwealth v. Hudson, 336 Pa.Super. 174, 485 A.2d 487 (1984), Commonwealth v. White, 333 Pa.Super. 1, 481 A.2d 1190 (1984) and Commonwealth v. Morrow, 326 Pa.Super. 443, 474 A.2d (1984). In Commonwealth v. Broadwater, 330 Pa.Super. 234, 47......
  • Com. v. White
    • United States
    • Pennsylvania Supreme Court
    • July 9, 1987
    ...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 ap......

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