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COMMONWEALTH v. MOUNT (06/28/71)

decided: June 28, 1971.

COMMONWEALTH
v.
MOUNT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1963, No. 236, in case of Commonwealth of Pennsylvania v. George A. Mount.

COUNSEL

Stephen M. Feldman, with him Robert E. Lenton, for appellant.

Edward G. Rendell, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.

Author: Roberts

[ 443 Pa. Page 247]

We must here decide whether our mandate in appellant's prior collateral attack was adequately followed. Our review of the record of the hearing on remand indicates substantial misunderstanding existed on the part of the hearing court as to the exact scope of its inquiry. While we are reluctant to remand the case yet again, we can see no other alternative.

The facts surrounding appellant's conviction of murder in the first degree have been set forth in detail elsewhere and only will be duplicated here to the limited extent necessary for deciding this appeal.*fn1

[ 443 Pa. Page 248]

Appellant pleaded guilty to murder generally, having been indicted in the killing of one Frances Lieberman. A three judge panel determined that appellant was guilty of first degree murder and had also raped his victim. Penalty was fixed at death in the electric chair.

After taking a direct appeal and filing a petition for habeas corpus, appellant filed a petition pursuant to the Post Conviction Hearing Act,*fn2 challenging the testimony of Agnes Mallatratt,*fn3 who had been ". . . employed by the Philadelphia Police Department as a laboratory technician specializing in blood and other bodily fluid stains. After she had testified in many cases, it was discovered in 1965 that she had lied about her professional qualifications in that, in reality, she had never fulfilled the educational requirements for a laboratory technician." Commonwealth v. Mount, supra, 435 Pa. at 422, 257 A.2d at 579.

Our previous analysis of this case disclosed that the death sentence was predicated on the rape feature of the crime and that further, without Miss Mallatratt's testimony, there was insufficient evidence to prove appellant raped the deceased. We there noted that ". . . [e]ven though Miss Mallatratt lacked the necessary theoretical and academic background for accreditation as a laboratory technician, it may well be that the practical experience gained over a long period of years in laboratory work did qualify her to make proper and sound laboratory findings." Commonwealth v. Mount, supra, 435 Pa. at 426-27, 257 A.2d at 582. We accordingly

[ 443 Pa. Page 249]

    vacated appellant's sentence and remanded the case for an inquiry into Miss Mallatratt's qualifications, a determination of what weight, if any, should be given to her testimony, ...


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