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COMMONWEALTH PENNSYLVANIA v. EBBEN BULLOCK (06/05/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EBBEN BULLOCK, APPELLANT

No. 27 SPECIAL TRANSFER DOCKET, Appeal from Judgment and Sentence of the Court of Common Pleas, Criminal Section, Philadelphia County, August Sessions, 1976, No. 1200.

COUNSEL

Hugh C. Clark, Philadelphia, for appellant.

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

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 266 Pa. Super. Page 527]

Appellant contends inter alia*fn1 that his trial counsel

[ 266 Pa. Super. Page 528]

    was ineffective*fn2 for not objecting or moving for mistrial on the basis of the prosecutor's comments during closing argument concerning appellant's credibility. We agree and, accordingly, reverse and remand for new trial.

Appellant was convicted by a jury of third degree murder in the stabbing death of Robert Berk. Appellant testified that the stab wound was accidental and that his inculpatory statement was inaccurate and was beaten out of him by police. At closing argument, the prosecuting attorney reviewed the inconsistencies in appellant's testimony regarding mistreatment by the police and, in so doing, twice stated his personal opinion as to appellant's veracity as follows:

"There was nothing there, ladies and gentlemen, because the defendant was not actually telling you the truth yesterday.

"You see, he was caught in an untruth."

We have said many times that such remarks are improper and constitute reversible error. See Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116 (1979); Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971); ABA Standards Relating to the Prosecution Function ยง 5.8(b). In the instant case, because trial counsel's ineffectiveness in failing to object or move for mistrial on the basis of such remarks is apparent from the record, we need not remand for an evidentiary hearing to determine whether he had some reasonable basis for his failure. Commonwealth v. Valle, 240 Pa. Super. 411, 414, 362 A.2d 1021, 1023 (1976).


*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania and Judge Warren K. Hess of the Court of Common Pleas of Berks County, Pennsylvania, are sitting by designation.


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