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COMMONWEALTH PENNSYLVANIA v. JOHN RUSH (03/10/82)

decided: March 10, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN RUSH, APPELLANT



No. 80-3-786, Appeal from the Order of the Court of Common Pleas Criminal Trial Division, First Judicial District, denying Petition for Relief under the Post Conviction Hearing Act at Nos. 1011-1013 March Term, 1970.

COUNSEL

Thomas I. Puleo, Philadelphia, Court-appointed, for appellant.

Robert B. Lawler, Chief, Appeals Div., Eric I. B. Beller, Asst. Dist. Attys., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Hutchinson, JJ. McDermott, J., did not participate in the consideration or decision of this case.

Author: Flaherty

[ 497 Pa. Page 452]

OPINION OF THE COURT

Appellant, John Rush, appeals from the denial of relief under the Post Conviction Hearing Act [PCHA], Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 to 14 (Supp. 1979-1980). The issue of the admissibility of his confession was decided adversely to him in his direct appeal, Commonwealth v. Rush, 459 Pa. 23, 326 A.2d 340 (1974), and is therefore finally litigated. PCHA supra at 19 P.S. § 1180-4(a)(3); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972).

Appellant also asserts that his trial counsel were ineffective for not raising objections to hearsay testimony implicating John Rush; to the prosecutor's remarks concerning availability of witnesses to the defense not called but subpoenaed by the Commonwealth; to the prosecutor's remarks made during summation and finally for not raising on appeal the admissibility of a hearsay statement as a dying declaration. Our examination of the record satisfies us that these contentions are without merit. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Therefore, the Order of the Court below is affirmed.

19820310

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