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Commonwealth of Pennsylvania v. David Allen

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT


February 23, 2010

COMMONWEALTH OF PENNSYLVANIA, RESPONDENT
v.
DAVID ALLEN, PETITIONER

Petition for Allowance of Appeal from the Order of the Superior Court

Per curiam.

ORDER

AND NOW, this 23rd day of February, 2010, the Petition for Allowance of Appeal is GRANTED. The order of the Superior Court is VACATED, and the matter is REMANDED to the Superior Court for consideration of whether the trial court improperly permitted newly-discovered evidence regarding the alleged contents of a telephone conversation between Petitioner and his wife to be introduced at trial over Petitioner's objection, as the Superior Court erroneously found the issue to be waived because Petitioner did not also additionally request a mistrial. See Commonwealth v. Maloney, 365 A.2d 1237, 1242 (Pa. 1976) (holding that where defense counsel made a timely objection, and it was overruled by the trial court, a further request for a mistrial was unnecessary and futile since the reasons for the objection were apparent, and the trial court's denial of the objection indicated its belief the jury could properly hear the matter which was the subject of the objection).

20100223

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