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COMMONWEALTH PENNSYLVANIA v. DERRICK SIMMONS (09/30/88)

filed: September 30, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DERRICK SIMMONS, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal at No. 83-01-30403043.

COUNSEL

Jeffrey M. Voluck, Philadelphia, for appellant.

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

Cirillo, President Judge, and Brosky and Popovich, JJ. Brosky, J. files a Concurring Statement.

Author: Popovich

[ 378 Pa. Super. Page 81]

This case is on remand*fn1 to the Superior Court for consideration of the remaining issues raised on appeal, but not addressed by a panel of this Court because of its award of a new trial to the appellant (Derrick Simmons) which was subsequently vacated by the Pennsylvania Supreme Court.*fn2

[ 378 Pa. Super. Page 82]

It was the initial position of the panel Majority (written by the now deceased Justice Roberts, joined by Brosky, J., but over the dissenting opinion by Popovich, J), that the closing argument of the prosecution, telling the jury:

[ 378 Pa. Super. Page 83]

    improperly urged upon the jury a bias in favor of conviction. This was held by the Majority of the panel to have denied the appellant (as well as his co-defendant Nathaniel West)*fn5 a fair trial. To remedy the matter, the judgment of sentence was vacated and a new trial was awarded (to the appellant and his co-defendant).

After appeal, the Pennsylvania Supreme Court entered a terse per curiam order reading:

The Orders of the Superior Court are vacated and the matters are remanded to the Superior Court for consideration of the remaining issues raised on appeal. See, e.g., ...


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