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COMMONWEALTH PENNSYLVANIA V. ANTHONY FUGARINO (08/08/80)

SUPERIOR COURT OF PENNSYLVANIA


August 8, 1980

COMMONWEALTH OF PENNSYLVANIA V. ANTHONY FUGARINO, APPELLANT

No. 1727 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Criminal Trial Division, Imposed on Informations 1182-1183, May Term, 1977.

Before Brosky, J., Wickersham, J., and Roberts, J.*fn* Wickersham, J., files a dissenting statement.

Per Curiam:

We vacate judgment of sentence and remand this case for an evidentiary hearing to determine whether the witness Inverso's identification testimony was the fruit of a violation of appellant's constitutional rights. If such a violation is found to have occurred, appellant must be granted a new trial. If such violation is not found to have occurred, judgment of sentence shall be reinstated. Appellant and the Commonwealth may appeal from the decision of the evidentiary court. Cf. Commonwealth v. Polsky, 485 Pa. 360, 402 A.2d 1003 (1979).

Wickersham,*fn* J., files a dissenting statement.

WICKERSHAM, J.

I DISSENT.


*fn* Justice Samuel J. Roberts of the Supreme Court of Pennsylvania is sitting by designation.


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