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COMMONWEALTH v. DAVIS (09/26/72)

decided: September 26, 1972.

COMMONWEALTH
v.
DAVIS, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1969, Nos. 557 and 560, in case of Commonwealth of Pennsylvania v. Arthur Lee Davis.

COUNSEL

Michael L. Levy and Francis S. Wright, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

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.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Packel, J. Hoffman and Spaulding, JJ., join in this dissent.

Author: Per Curiam

[ 222 Pa. Super. Page 434]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

[ 222 Pa. Super. Page 435]

Dissenting Opinion by Packel, J.:

The constitutional right to effective assistance of counsel at a trial to determine guilt is denied if the defendant's attorney admits guilt. The conduct of counsel for the appellant constituted such an admission.

Defense counsel stipulated during trial that were the complainant present and sworn he would have testified that: at 4:00 p.m. on December 31, 1968, two men entered his milk truck, pointed a pistol at his head and demanded all of his money; after he complied, the thieves withdrew and he notified the police; and, at the preliminary hearing, he identified the appellant as one of the two robbers. The complete closing speech of appellant's counsel was: "If Your Honor please, this man has been in jail for almost one year. This man has a narcotic problem."

The Commonwealth's case hinged upon identification. Although one policeman testified that he saw a person running in the vicinity of the incident who fitted the general description later given by the complainant, it was the identification by the complainant himself which was the pivotal evidence in the case. Defense counsel gave up the opportunity to cross-examine and this was not ...


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