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COMMONWEALTH PENNSYLVANIA v. CHARLES F. MARTIN (07/24/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 24, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES F. MARTIN, APPELLANT

No. 783 Pittsburgh, 1980, Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of Indiana County, Pennsylvania, Criminal Division, at No. 171 of 1979.

COUNSEL

Anthony W. DeBernardo, Jr., Greensburg, for appellant.

Gregory A. Olson, Assistant District Attorney, Indiana, for Commonwealth, appellee.

Brosky, DiSalle and Shertz, JJ.

Author: Per Curiam

[ 289 Pa. Super. Page 199]

Appellant, Charles Martin, was charged with, convicted by a jury of, and sentenced for the crimes of aggravated assault, 18 Pa.C.S.A. § 2702, and recklessly endangering another person, 18 Pa.C.S.A. § 2705. He appeals his convictions contending that his trial counsel was ineffective for failing to object or move for a mistrial when a Commonwealth witness testified that the appellant had said he would not take a lie detector test. We agree.

[ 289 Pa. Super. Page 200]

In Commonwealth v. Kemp, 270 Pa. Super. 7, 11, 410 A.2d 870, 871 (1979) our court held that "[w]hen the reference [to a lie detector test] is elicited by the prosecution . . . a curative instruction will be of no value." The failure of appellant's counsel to object to the witness' testimony cannot possibly be considered to have "had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Page 200} Washington v. Maroney, 427 Pa. 599, 235 A.2d 349, 352 (1967). Appellant's counsel, therefore, was ineffective.*fn1

Judgment of sentence vacated and a new trial ordered.


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