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COMMONWEALTH v. DEWS (03/15/68)

decided: March 15, 1968.

COMMONWEALTH
v.
DEWS, APPELLANT



Appeal from order of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1958, Nos. 914 and 915, in case of Commonwealth of Pennsylvania v. William Dews.

COUNSEL

John J. King, for appellant.

Leslie J. Carson, Jr. and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, 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

[ 429 Pa. Page 556]

Appellant William Dews was convicted by a jury of second degree murder; a sentence of 10 to 20 years was imposed in June of 1958. No posttrial motions were filed and an appeal was therefore not taken. Dews subsequently filed a 1967 petition under the Post Conviction Hearing Act.*fn1 By order dated May 16, 1967 appellant was given leave to file new trial and arrest of judgment motions nunc pro tunc. It is from the denial of those motions that he now appeals.

Several of appellant's complaints require but brief discussion. He asserts that court appointed trial counsel were incompetent. A careful examination of the

[ 429 Pa. Page 557]

    trial record discloses no conduct even closely approximating the standard of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Furthermore, at the post-conviction hearing appellant stated that this claim was based upon the failure of trial counsel to file new trial motions or appeal. Assuming arguendo that counsel's representation was in this aspect ineffective, the remedy is not a new trial but, as was done by the court below, permission to file new trial motions nunc pro tunc.

Dews insists that the Commonwealth suppressed evidence and employed perjured testimony. The suppression claim is based upon appellant's belief that a taxicab driver would have corroborated appellant's testimony that one Harriet Jones was in possession of the murder weapon. Not only was there no showing at the hearing that the driver would have so testified, but others in the cab testified that none of them knew the contents of a paper bag in which Miss Jones was allegedly carrying the weapon. Under these circumstances it is unrealistic to assume that the cab driver could have proffered any testimony helpful to the defense. Appellant's perjury claim rests upon his belief that Laura Miles, an eyewitness who testified that appellant fired the fatal shot, had lied under oath. Assessment of her credibility was a jury function and appellant's bare allegation does not demonstrate that this testimony was perjured.

It is also asserted that the Commonwealth failed to prove the corpus delicti. In a murder prosecution, the Commonwealth must prove that the alleged victim is dead and that the death was the result of a criminal agency. See Commonwealth v. Maybee, 429 Pa. 222, 239 A.2d 332 (1968). The post-conviction hearing judge adequately disposed of this contention: "George Pollard, Mary Pollard and Laura Miles who were in

[ 429 Pa. Page 558]

    the house with Walter Alexander at the time of the shooting testified as to the shooting of Walter Alexander. Officers Coughlin and Logan testified as to the bullet wound. Officers Marchak and Kunzig testified that they took the decedent to the hospital and that he was ...


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