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COMMONWEALTH PENNSYLVANIA v. EDWARD BAKER (01/04/88)

submitted: January 4, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD BAKER, APPELLANT



Appeal from the PCHA Order of May 28, 1987, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 22-25 FEB 1974.

COUNSEL

Norris E. Gelman, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Watkins and Hester, JJ.

Author: Hester

[ 371 Pa. Super. Page 589]

This is an appeal from the denial of appellant's petition for PCHA relief. Appellant was convicted of first degree murder, robbery, burglary and criminal conspiracy. He

[ 371 Pa. Super. Page 590]

    was sentenced to life imprisonment for murder and two concurrent terms of ten to twenty years imprisonment for burglary and robbery. Appellant alleges that all of his prior counsel were ineffective for failing to raise trial counsel's ineffectiveness for not objecting to the prosecutor's closing remarks. We hold that appellant's allegation has been finally litigated, and we affirm the order of the trial court.

Following a jury trial, appellant was found guilty on September 27, 1974. Represented by new counsel, appellant filed timely post-trial motions, which were denied. He was sentenced on March 27, 1975, and filed an appeal to the Pennsylvania Supreme Court, which affirmed the judgment of sentence on March 17, 1976. Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976). Subsequently, appellant, represented by new counsel, filed his first PCHA petition which was denied on January 8, 1980, following an evidentiary hearing. The supreme court affirmed the denial of PCHA relief on July 2, 1981. Commonwealth v. Baker, 494 Pa. 144, 430 A.2d 1158 (1981). Thereafter, appellant filed a petition for writ habeas corpus in the United States District Court for the Eastern District, which denied relief on July 21, 1983. Baker v. Patton, No. 82-4648 (E.D.Pa. 7/21/83). He then filed a petition for a certificate of probable cause in the United States Court of Appeals for the Third Circuit, which was denied on April 24, 1985. Appellant, again represented by new counsel, filed a second PCHA petition, which was denied on May 28, 1987. Appellant, with newly appointed counsel, appeals from this second denial of PCHA relief.

The supreme court has aptly stated the facts as follows:

On December 20, 1973, Steven Gibbons was found dead in his home. The house had been thoroughly ransacked. The body of the deceased was bound and gagged with paper stuffed in the mouth and an ice pick plunged downward into the nape of the neck. A physician from the office of the medical examiner testified for the Commonwealth that death resulted from the stabbing, strangulation and a severe beating which had been inflicted on

[ 371 Pa. Super. Page 591]

    the victim. The victim was approximately 80 years old ...


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