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COMMONWEALTH PENNSYLVANIA v. JOHN KELLY (11/17/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 17, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN KELLY, APPELLANT

Appeal No. 851 October Term, 1977, from the judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 0541, 42, 43 March Term, 1976; Anderson, Judge.

COUNSEL

John A. Papola, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., concurs in the result. Spaeth, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

Judgment of sentence affirmed.

SPAETH, Judge, dissenting:

I should remand for a hearing to determine whether trial counsel was ineffective for failing to file a motion to suppress and whether appellant's waiver of a jury trial was voluntary. See Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

19781117

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