![]() ![]() The alleged errors of counsel which are pertinent to this appeal include: (1) Chappelle's failure to object to the prosecutor's comment in his opening statement that Moore "is obviously going to put his life in his hands by testifying," failure to request a mistrial, to raise the issue in post-trial motions and to raise and preserve the issue for appellate review and (2) Chappelle's failure to object, to request timely cautionary instructions, to move for a mistrial and to preserve for appeal all of the following comments of the prosecutor in his closing argument: (a) that Detective McMillan thought Werts was a killer (b) Moore was a "marked man" (c) that people in Werts' neighborhood decide to commit robbery "out of the clear blue " and, (d) that Werts is a dope addict and thief and maybe the jury should not believe what he says. Essentially, Werts argued that Attorney Chappelle was ineffective for failing to raise objections during trial and closing argument, failing to move for a mistrial on several occasions, and for failing to preserve certain issues in written post-trial motions or on direct appeal. Counsel filed an amended petition in which he alleged Werts was deprived of his right to effective assistance of counsel at trial, in post-trial motions and on direct appeal. 2 New counsel, Louis Lipschitz, Esquire, was appointed to represent Werts in the state collateral proceeding. On May 15, 1979, Werts filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Hearing Act ("PCHA"), 19 P.S. Thus, Werts did not raise, and the Pennsylvania Supreme Court did not consider, on direct appeal any due process challenges based on the prosecutor's remarks to the effect that (1) Detective McMillan thought Werts was a killer (2) people in Werts' neighborhood decide to commit robbery for no reason and (3) he personally vouched for the credibility of homicide Detectives McMillan and Dougherty. ![]() Finally, the underlying comment at issue in contention ten is the prosecutor's misstatement in his closing that Moore testified that Werts stated "I'm not going in there" during a conversation with Atlee Moore regarding the planning of the robbery. At the base of the sixth "meritless" contention is Detective McMillan's statement that during the search of Werts' house, he found several articles of clothing that had been reported stolen. It is clear from Werts' brief that the challenged remark at the heart of the fifth contention above is the prosecutor's statement that Moore would be a "marked man" if he was returned to prison. Nelson was not permitted, however, to give his professional opinion as to what the effect of an intense craving for heroin would be on Werts' ability to make a rational decision or as to Werts' primary motivation during his interrogation.Ĥ83 Pa. Nelson, on this issue who was allowed to give his professional opinion regarding the impact of trauma sustained at the time of the arrest to Werts' pre-existing lower back injury, a heroin addict's craving for heroin if he had not had an injection for 48 hours, the amount of stress from an intense craving for heroin, and about Werts' ability to resist his interrogators when he is under this mental stress. Werts presented the expert testimony of a psychiatrist, Dr. ![]() Werts attacked the accuracy and voluntariness of the alleged confession on the basis that he was suffering from increased back pain, brought on by police brutality which aggravated a prior back injury, and by heroin withdrawal at the time of the interrogation which seriously impaired his ability to give an accurate and voluntary statement. ![]()
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