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COMMONWEALTH PENNSYLVANIA v. JOSEPH COUNCIL (05/08/86)

submitted: May 8, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH COUNCIL, APPELLANT



Appeal from the Judgment of Sentence September 11, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 629, 631, 633 Sept. Term 1983.

COUNSEL

Anita M. Cohen, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Olszewski and Beck, JJ. Wieand, J., files a concurring opinion.

Author: Olszewski

[ 355 Pa. Super. Page 445]

Before us today is the appeal of Joseph Council following his conviction by a jury for the crimes of murder in the third degree, robbery, and criminal conspiracy. This is the second case in a trilogy, all involving the same facts. The first case, Commonwealth v. Upchurch, 355 Pa. Super. 425, 513 A.2d 995, also decided today, satisfactorily sets forth all pertinent facts. In addition, with respect to appellant, we note:

Defendant Council was charged under September Term, 1983: no. 629 criminal conspiracy; no. 630 possession of an instrument of crime, generally; no. 631 robbery; no. 632 involuntary manslaughter; and no. 633 murder, voluntary manslaughter. Council was sentenced on bill no. 633 to not less than ten nor more than twenty years at the State Correctional Institution at Graterford; on bill no. 631 Council was sentenced to not less than ten nor more than twenty years to run consecutive to bill no. 633; and on bill no. 629 Council received not less than five nor more than ten years

[ 355 Pa. Super. Page 446]

    to run consecutive to bill no. 631. The defendant was assessed $15.00 towards the Victim's Compensation Fund.

Many of the allegations of error raised by appellant Council have been addressed adequately in the companion case, Commonwealth v. Upchurch. Pursuant to that, we deem it unnecessary to once again discuss the same issues. Those issues affirmed in Upchurch and affirmed with respect to Council through the adoption of our reasoning in Upchurch are as follows: (a) that the Commonwealth acted improperly in: withholding discovery, allowing uncorrected false testimony to go to the jury, introducing testimony of an unrelated weapon, introducing testimony regarding a polygraph, presenting its closing argument; (b) that the trial court acted improperly in: ruling Andre Hackney competent to testify, the procedure followed in making the above ruling, allowing the Commonwealth to lead Andre Hackney, allowing to go uncorrected false testimony, not enforcing pre-trial discovery, allowing the prosecutor to give an improper closing, charging the jury about its opinion as to the evidence of manslaughter, refusing to excuse Leonard Kaminski for cause, not allowing the appellant's counsel to cross-examine prospective juror Dorothy Heebner for cause, limiting cross-examination of Andre Hackney; and (c) that there was sufficient evidence to sustain a conviction for robbery.

Our inquiry, then, deals only with those arguments raised solely by appellant Council and not otherwise addressed.

I.

First, we consider appellant's contention that the prosecutor engaged in a pattern of rude and abusive conduct towards the defense. With this, we also consider appellant's argument that the court erred in allowing the ...


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