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COMMONWEALTH v. LOPINSON (10/04/72)

SUPREME COURT OF PENNSYLVANIA


decided: October 4, 1972.

COMMONWEALTH
v.
LOPINSON, APPELLANT

Appeals from judgment of sentence of Court of Common Pleas, Oyer and Terminer of Philadelphia, July T., 1964, Nos. 469 and 470, in case of Commonwealth of Pennsylvania v. Jack Lopinson.

COUNSEL

Oscar Spivack, with him A. Charles Peruto, for appellant.

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

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the decision of this case.

Author: Per Curiam

[ 449 Pa. Page 34]

In 1965, following a jury trial in the Philadelphia Court of Common Pleas, the appellant was convicted of first-degree murder. The jury fixed the penalty at death. The conviction and sentence were affirmed by this Court, Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). The United States Supreme Court vacated the judgment of sentence and remanded to this Court for reconsideration in light of Witherspoon v. Illinois, 391 U.S. 510 (1968). This Court, in turn, remanded the case to the court below for a determination of the Witherspoon issue. The court below found no violation of the standards enunciated in Witherspoon and filed a report to the Supreme Court of Pennsylvania to that effect. Appellant filed exceptions to the report.

Inasmuch as the United States Supreme Court, in Furman v. Georgia, 408 U.S. 238 (1972), has ruled that the imposition of the death penalty under statutes such as the one in which the death penalty was imposed upon appellant*fn* is violative of the Eighth and Fourteenth Amendments, it is unnecessary for us to consider appellant's claim of noncompliance with the Witherspoon standard. The Supreme Court, in Moore v. Illinois, 408 U.S. 786, 800 (1972), quoting

[ 449 Pa. Page 35]

    from Witherspoon, stated: "Nor finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case. The sentence of death, however, may not now be imposed." See Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972).

The sentence of death is vacated and appellant is sentenced to life imprisonment.

Disposition


*fn* : On May 14, 1973, the Supreme Court of the United States denied a petition for a writ of certiorari.


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