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COMMONWEALTH EX REL. MARINO v. MYERS (11/23/65)

decided: November 23, 1965.

COMMONWEALTH EX REL. MARINO, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1963, No. 4007, in case of Commonwealth ex rel. Thomas Marino v. David N. Myers, Superintendent.

COUNSEL

Thomas Marino, appellant, in propria persona.

Ted E. Freedman and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 419 Pa. Page 449]

Appellant is presently serving a life sentence following his 1947 jury conviction of murder in the first degree.*fn1 He filed a petition for a writ of habeas corpus

[ 419 Pa. Page 450]

    in the court below contending that the introduction at his trial of evidence of prior convictions, under the then prevailing "Parker Rule",*fn2 resulted in a denial of due process and invalidated his conviction.*fn3 The petition was dismissed*fn4 and this appeal followed.

Upon examination of the record, we conclude that the court below did not err in dismissing appellant's petition. However, in light of the recent decision in United States ex rel. Johnson v. Rundle, 243 F. Supp. 695 (E.D. Pa.), aff'd on the opinion below, 349 F. 2d 416 (3d Cir. 1965) (per curiam),*fn5 we deem it appropriate to add a few observations in support of our conclusion.

Appellant, married and the father of two daughters, was charged with the murder of James Landi, a 17 year old youth. The slaying arose out of circumstances engendered by a belief on the part of appellant that the deceased had seduced his youngest daughter. Resentful,

[ 419 Pa. Page 451]

    appellant sought out Landi at his place of employment and requested that Landi accompany him to his home to discuss the matter. Acceding to the request, Landi, attended by a friend, accompanied appellant home. Once there, appellant produced a gun which he had kept concealed in the house and, after striking Landi a number of blows to the head with the weapon, fatally shot him in the chest.

The Commonwealth, seeking a first degree murder conviction and the death penalty, endeavored at trial to prove a premeditated design on the part of appellant to kill Landi. Appellant did not controvert the shooting but asserted that it had not been premeditated, that he had intended merely to frighten the deceased and had been provoked into firing the fatal shot by certain alleged derogatory remarks made by Landi regarding appellant's daughter. All that was sought by the defense was ...


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