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COMMONWEALTH v. FAISON (03/25/70)

decided: March 25, 1970.

COMMONWEALTH
v.
FAISON, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Sept. T., 1951, No. 194, in case of Commonwealth v. Lamar Faison.

COUNSEL

Paul J. Cody, for appellant.

Michael M. Baylson, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell concurs in the result.

Author: Pomeroy

[ 437 Pa. Page 434]

On July 13, 1951, appellant Lamar Faison shot and killed one Harold R. Dennis. The following day appellant was apprehended and charged with murder. In May 1952, following a trial by jury at which he was

[ 437 Pa. Page 435]

    represented by privately-retained counsel, appellant was found guilty of murder in the first degree, and his penalty was fixed at life imprisonment. Thereafter, appellant's trial counsel filed a motion for new trial which was denied by the trial court after a hearing. In accordance with the penalty fixed by the jury, the appellant was sentenced to life imprisonment. At the close of the hearing, appellant's attorney, speaking on the record, informed appellant that he had forty-five days in which to file an appeal from the judgment of sentence. Thereupon he moved to withdraw as counsel for the appellant and was granted permission to do so by the trial court. No appeal was taken.

In 1967, appellant filed successive petitions for writs of habeas corpus in the Court of Quarter Sessions of Philadelphia County*fn1 and in the District Court of the United States for the Eastern District of Pennsylvania.*fn2 Both these petitions were denied; neither denial

[ 437 Pa. Page 436]

    was appealed. Thereafter in September 1967, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. 1180-1 et seq., alleging, inter alia, the obstruction of his right to appeal and requesting as relief the "right of direct appeal nunc pro tunc." At a hearing limited to the issue of appellant's right to appeal, the lower court found that after his trial counsel had withdrawn, appellant had requested the trial court to appoint counsel, but this request was denied. The hearing court further found that appellant at that time was unable to afford counsel for the prosecution of an appeal.*fn3 On these facts the court concluded that Faison had been denied his Douglas rights and he was "granted 45 days to appeal your [petitioner's] initial trial to the State Supreme Court."*fn4

[ 437 Pa. Page 437]

Before treating the questions presented by this appeal, it is necessary to state briefly the facts surrounding the death of Harold Dennis as they were adduced at trial. All parties agreed that appellant had in fact shot and killed Dennis in the parlor of the Dennis home. The issues at trial were whether the shooting had been in self-defense, and the nature and degree of the homicide involved. The Commonwealth's principal witnesses were Mrs. Effew Dennis, wife of the deceased, and Mrs. Flossie Barksdale, Mrs. Dennis' sister. Mrs. Dennis was present at the time of the shooting and was herself shot twice during the ensuing struggle. At trial, Mrs. Dennis gave an eyewitness account of the incident. According to her narrative, appellant ...


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