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COMMONWEALTH PENNSYLVANIA v. JOSEPH SAMPLE (03/13/81)

decided: March 13, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOSEPH SAMPLE, APPELLANT



No. 80-3-506, Appeal from Order of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at Nos. 389-393 February Term, 1975

COUNSEL

David L. Pollack, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Ann Lebowitz, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, Larsen and Kauffman, JJ., concur in the result.

Author: O'brien

[ 493 Pa. Page 348]

OPINION

This interlocutory*fn1 pre-trial appeal is from an Order of the Court of Common Pleas, Philadelphia, which denied a motion by appellant, Joseph Sample, to dismiss various informations.

In July of 1975, appellant was convicted by a jury of murder of the second degree, robbery, conspiracy and three weapons offenses. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction with concurrent prison terms of eight-to-twenty years for the robbery conviction, five-to-ten years for the conspiracy conviction and two-to-five years for the weapons offenses. No direct appeal was taken.

Appellant subsequently filed a petition pursuant to the Post-Conviction Hearing Act and was granted the right to file his appeal nunc pro tunc. Said appeal was transferred to the Superior Court on the Special Transfer Docket. The Superior Court reversed and granted appellant a new trial

[ 493 Pa. Page 349]

    because of prosecutorial misconduct.*fn2 Commonwealth v. Sample, 270 Pa. Super. 47, 410 A.2d 889 (1979).

On April 3, 1980, appellant filed a motion to dismiss informations, alleging that the trial would violate the double jeopardy clauses of both the United States and Pennsylvania Constitutions. Said motion was denied and this appeal followed.

The Superior Court granted appellant a new trial, holding that appellant had been denied the effective assistance of counsel when his attorney had failed to preserve for appellate review the issue of prosecutorial misconduct concerning improper remarks made by the prosecutor during his closing arguments to the jury. To put the entire ...


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