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COMMONWEALTH EX REL. DEMOSS v. CAVELL (01/04/67)

decided: January 4, 1967.

COMMONWEALTH EX REL. DEMOSS, APPELLANT,
v.
CAVELL



Appeal from order of Court of Common Pleas No. 8 of Philadelphia County, Sept. T., 1965, No. 1300, in case of Commonwealth ex rel. Gus Alfred DeMoss v. A. C. Cavell, Superintendent.

COUNSEL

Gus Alfred DeMoss, appellant, in propria persona.

Alan J. Davis, Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 423 Pa. Page 598]

Petitioner, Gus Alfred DeMoss, is one of four men convicted of the 1955 felony murder of Lulu Rossman, the others being Raymond Wilson, R. W. Thomas, and Frank Ellsworth. This Court has affirmed the life

[ 423 Pa. Page 599]

    sentence, imposed after separate trials, of all the defendants except Ellsworth; twice we have granted Ellsworth a new trial because of errors below. Commonwealth v. DeMoss, 401 Pa. 395, 165 A.2d 14 (1960), cert. denied, 365 U.S. 822, 81 S. Ct. 708 (1961); Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234, cert. denied, 361 U.S. 844, 80 S. Ct. 97 (1959); Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255, cert. denied, 375 U.S. 856, 84 S. Ct. 118 (1963); Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963) (new trial ordered because of admission in evidence of statements by co-conspirator implicating Ellsworth after conspiracy had terminated); Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966) (new trial ordered because of introduction of illegally seized evidence). The factual background of the homicide is set forth in the above cited opinions.

On direct appeal to this Court, petitioner's only contention was that the evidence against him was insufficient to sustain a conviction. Following our affirmance and the denial of certiorari by the Supreme Court of the United States, he filed a petition for a writ of habeas corpus in the federal district court, again alleging as his sole ground for relief the insufficiency of the evidence. Relief was denied. United States ex rel. DeMoss v. Pennsylvania, 198 F. Supp. 570 (E.D. Pa. 1961), aff'd, 316 F. 2d 841 (3d Cir.), cert. denied, 375 U.S. 859, 84 S. Ct. 123 (1963). Subsequently in 1965 petitioner again sought relief in the federal courts, but his petition was denied for failure to exhaust state remedies. The present appeal is from the denial, without a hearing, of a petition for habeas corpus filed in the Court of Common Pleas No. 8 of Philadelphia County.

In his petition, DeMoss alleges that his trial and conviction resulted in a deprivation of due process because: (1) the trial court committed error in permitting the

[ 423 Pa. Page 600]

    introduction of certain testimony; (2) he was denied the assistance of counsel during interrogation; (3) illegally seized evidence was improperly admitted; (4) he was denied his right to a speedy trial. We find all these contentions to be without merit.

The alleged trial errors are all matters which could have been raised on direct appeal and are accordingly not cognizable for the first time in the present petition. See, e.g., Commonwealth ex rel. Butler v. Rundle, 407 Pa. 535, 180 A.2d 923, cert. denied, 371 U.S. 866, 83 S. Ct. 127 (1962). His right to counsel claim is controlled by Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 ...


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