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COMMONWEALTH PENNSYLVANIA v. RICHARD PACELL (09/13/85)

filed: September 13, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD PACELL, APPELLANT



No. 1004 Philadelphia, 1984, Appeal from the Judgment of Sentence entered March 20, 1984, Court of Common Pleas, Philadelphia County, Criminal Division at Nos. 2030-2031 September Term, 1982.

COUNSEL

Thomas J. Turner, III, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ.

Author: Johnson

[ 345 Pa. Super. Page 205]

Following a jury trial Appellant, Richard Pacell, was convicted of first-degree murder and possessing instruments of crime generally. On March 20, 1984, the Honorable George J. Ivins of the Court of Common Pleas of Philadelphia County sentenced Appellant to life imprisonment for first-degree murder and a concurrent sentence of not less than one nor more than two years for possessing instruments of crime generally.

[ 345 Pa. Super. Page 206]

On appeal from the Judgment of Sentence Appellant raises the following issues:

I. REVERSIBLE ERROR WAS COMMITTED WHEN THE PROSECUTOR WAS ALLOWED TO QUESTION THE APPELLANT, OVER OBJECTIONS OF TRIAL COUNSEL, AS TO PRIOR CRIMINAL ACTIVITY AND, IN PARTICULAR, THE ASSAULT ON DEBBIE BIRKMIRE.

II. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR A MISTRIAL WHEN THE PROSECUTOR IN HIS CLOSING ADDRESS WAS GUILTY OF PROSECUTORIAL MISCONDUCT IN CALLING THE DEFENDANT A LIAR.

III. REVERSIBLE ERROR WAS COMMITTED WHEN THE TRIAL COURT CONTINUALLY ALLOWED THE PROSECUTING ATTORNEY TO LEAD WITNESSES AND THEN REPEAT THE WITNESSES' TESTIMONY AFTER THEIR ANSWERS, OVER THE OBJECTIONS OF TRIAL COUNSEL.

IV. ERROR WAS COMMITTED WHEN THE JURY FOUND THE DEFENDANT GUILTY OF FIRST DEGREE MURDER DESPITE THE FACT THAT THE EVIDENCE PRESENTED WOULD NOT ALLOW A DETERMINATION OF GUILT BEYOND A REASONABLE DOUBT.

After careful review of the record, we believe Judge Ivins' Opinion filed March 6, 1984 adequately addresses Issues II and III and with respect to these issues raised by Appellant on appeal, we ...


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