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COMMONWEALTH PENNSYLVANIA v. WALTER J. BODGE (10/17/80)

SUPERIOR COURT OF PENNSYLVANIA


October 17, 1980

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER J. BODGE, JR., APPELLANT

No. 2905 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 4183 July Term, 1975

Before Brosky, Wickersham and Eagen, JJ.*fn* Wickersham, J. files a Concurring Statement. Eagen, C.j. files a Concurring Opinion.

Per Curiam:

Order affirmed.

Wickersham, J. files a Concurring Statement.

Eagen, C.J. files a Concurring Opinion.

WICKERSHAM, J.

I concur in the result.

GAGEN, J.

I concur in the court's order but cannot join the memorandum opinion.

The main issue is whether counsel was ineffective in failing to seek suppression of admissions made to the district attorney when counsel learned of them at trial. The memorandum opinion apparently holds he was not because such a motion, if made, would have been made when the district attorney testified in rebuttal and would have been meritless because the defendant waived any claim of an agreement to keep the conversation with the district attorney "off-the-record" when he testified. The difficulty I have with this ruling is that the defendant testified to the conversation with the district attorney during cross-examination; hence, the Commonwealth broke the agreement if one existed.


*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania is sitting by designation. Decision was rendered prior to the retirement of Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania.


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