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decided: March 25, 1970.


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


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a hearing limited to the issue of appellant's right to appeal, the lower court found that after his trial counsel had withdrawn, appellant had requested the trial court to appoint counsel, but this request was denied.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 came to their house seeking Mrs. Barksdale; after having joined them for dinner and as he was about to leave their home, he confronted them with a gun and without provocation shot Mr. Dennis.

The bulk of Mrs. Barksdale's testimony, which was discursive and occasionally unresponsive,*fn5 concerned

[ 437 Pa. Page 438]

    her relationship with appellant. Mrs. Barksdale testified that she had been seeing appellant for some ten months prior to the murder. Their relationship, according to her account, had begun when appellant had followed her home one night after work and raped her; she stated that she continued to see appellant after that time only because he threatened to kill her and her three children if she left him or refused to comply with his wishes. Mrs. Barksdale further testified that appellant had once held her captive in his room for three days, and that in connection with his threats to her he had repeatedly pointed at her the same pistol which he used in the slaying of Dennis. This testimony was presented by the Commonwealth in support of its theory of the murder, viz., that appellant, angered that Mrs. Barksdale had left him, had gone to the Dennis home in search of her; suspecting that Mr. Dennis was assisting Mrs. Barksdale in eluding him, appellant transferred his malice and anger to Dennis and shot him.

The Commonwealth's theory was apparently derived from, and was supported by, a five page statement appellant made to the police when he was apprehended the morning after the slaying. Appellant was arrested in a taproom-restaurant after he had told the owner that he had shot a man, in full anticipation that the police would be called. The statement in question was made to the police some three hours after appellant was apprehended and after appellant had been formally interrogated by the police for approximately one-half

[ 437 Pa. Page 439]

    hour. The statement was given after appellant had been told of the charge on which he had been arrested, warned that anything he said could be used against him, and informed that he was entitled to a lawyer. Appellant in this statement specifically noted that the account contained therein was true and that the statement was given voluntarily. His account of the previous day's events supported his own contention that the slaying was an act of self-defense. The statement was read to the jury by the interrogating officer as part of the Commonwealth's case.*fn6

According to the appellant's statement to the police, the facts of the case were as follows: On the day of the murder, Mrs. Dennis told appellant that Flossie would be telephoning her at Mrs. Dennis' home in the afternoon. Appellant thereafter went to the Dennis' but found that Mrs. Barksdale had not been heard from. He then went to her home, let himself in through the front window, and again failing to find her, returned to the Dennis' and had dinner with them. While he was there, Mr. Dennis received a phone call from Mr. Barksdale, Flossie's husband. When Dennis finished speaking with Barksdale, he accused appellant of having broken into the Barksdale home, and appellant heatedly denied the accusation. Dennis then threatened to kill appellant, and advanced on him with an open switch blade knife. When Dennis gave appellant no chance to leave the room, appellant shot him once in the chest. He stated that he had gone to the Dennis' home hoping to find Mrs. Barksdale who he "intended to kill" because "[she] treated me so dirty," and he concluded that "what all the trouble come from was Flossie."

[ 437 Pa. Page 440]

The case for appellant was predicated on the theory of self-defense. Appellant testified in his own behalf at considerable length and corroborated the narrative which he had given the police in all material respects: He testified that after he had dined with the Dennis' and as he was about to leave their home, Dennis received a phone call. When Dennis hung up, he accused appellant of having broken into the Barksdale home. When appellant denied this, Dennis threatened to kill him, and advanced on him with a switch blade. Appellant testified that he asked Dennis to let him leave, and that he shot Dennis only when he continued to threaten him and when he was some few feet distance from him. Appellant further testified that he never intended to kill Mrs. Barksdale, although he admitted that he may have made comments to the contrary while he was in custody. When cross-examined about his confession which he had given to the police, appellant repeatedly stated that he did not remember signing the statement but that he would not deny that he had made and signed it. He stated that at the time of his arrest, he had been drinking and was upset and not at all himself.

On this appeal, Faison raises four questions for this Court's consideration: (1) whether appellant was denied his constitutional right to the effective assistance of counsel when his attorney raised only three questions on voir dire and directed those questions to the jurors as a panel rather than questioning them individually; (2) whether the introduction of evidence of appellant's prior criminal record -- three previous homicide convictions -- was a denial of due process; (3) whether the trial court erred in permitting the Commonwealth to introduce, over appellant's objection, allegedly irrelevant and prejudicial testimony of Mrs. Barksdale; and (4) whether the admission into evidence of his statement to the police without a preliminary

[ 437 Pa. Page 441]

    determination of its voluntariness by the trial judge outside the presence of the jury was a denial of due process. The threshold problem, however, is the determination of which, if any, of these questions is properly before us at this time.

As indicated above, this is a direct, albeit belated, appeal from the original judgment of sentence imposed upon appellant by the Philadelphia County Court of Oyer and Terminer. In such a nunc pro tunc appeal taken pursuant to a finding that the appellant was denied his Douglas rights, the appellant may raise only those issues which might have been pressed on a timely appeal. The ordinary standards governing the scope of appellate review are complicated, however, in two respects by the time interval between the judgment of sentence and the nunc pro tunc appeal: (1) intervening court decisions which declare new rights, constitutional or otherwise, may affect the grounds of appellant's appeal, providing a basis for relief which was not available during appellant's original appeal period; and (2) post-conviction or collateral proceedings initiated by appellant between sentence and appeal may affect those issues which he may properly press on appeal.

As to the first complicating factor, we hold that an appellant may press on a nunc pro tunc appeal an issue premised on a constitutional right which was enunciated subsequent to his original judgment of sentence, provided that this right has been given such retroactive effect that it would have been available to appellant had an appeal been timely filed. See Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968).*fn7

[ 437 Pa. Page 442]

In Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966) a unanimous court, speaking through Mr. Chief Justice Bell, stated that an issue raised for the first time on appeal would be considered "where public policy or the interests of justice require a consideration and determination thereof." Both these considerations dictate that an appellant should be able to press on appeal any issue as to a constitutional right enunciated after his judgment of sentence and given retroactive effect. Were this not the case, the appeal would not be an end to litigation but only a prelude to post-conviction proceedings in which the constitutional issue would be raised. To bar an appellant from raising such issues would serve neither the ends of fairness to the appellant nor the policy of expeditiously terminating litigation. See also Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966).

The second problem posed by the time lag between judgment of sentence and a nunc pro tunc appeal concerns the effect to be given to intervening collateral proceedings brought by appellant while represented by counsel. Where issues fully cognizable therein have been raised and fully litigated within the meaning of § 4 of the Post Conviction Hearing Act, supra, it would serve no useful purpose to reconsider such issues upon direct appeal. Similarly, where issues were available to, but were not raised by, petitioner in prior counseled PCHA proceedings, that failure to press the issue may constitute a waiver within the meaning of § 4. Section 4 embodies a rule of procedural finality whereby the failure to assert an alleged constitutional deprivation in earlier litigation forecloses the opportunity to challenge that deprivation in a subsequent proceeding.

[ 437 Pa. Page 443]

    on this point is clearly without merit. We have held that the effective assistance of counsel is not denied so long as the course of action taken by counsel has some reasonable basis designed to advance his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 345 A.2d 349 (1967); Commonwealth v. Walker, 433 Pa. 124, 130, 249 A.2d 283 (1969). We conclude that this standard was satisfied by counsel's resort to an expeditious voir dire examination of the jurors as a panel where only three identical questions were to be raised, and we find no constitutional imperative which would require counsel to question the jurors on other, unspecified grounds.*fn9 Although the practice in capital cases of placing each prospective juror under oath and examining him individually before accepting or rejecting him is one of long standing in this Commonwealth, such an individual examination was not required at the time of appellant's trial.*fn10 See Commonwealth v. Cephas, 213 Pa. Superior Ct. 278, 279, 247 A.2d 662 (1968); Commonwealth v. Exler, 61 Pa. Superior Ct. 423 (1915). We

[ 437 Pa. Page 445]

    hold that appellant's right to the assistance of counsel was not abridged by the method in which the voir dire was conducted.

Second, appellant contends that the introduction of evidence of his prior criminal record under the then prevailing "Parker rule" procedure was a denial of due process. This issue was raised in both of appellant's habeas corpus petitions, and both the state and the federal courts decided the point adversely to petitioner on the authority of Spencer v. Texas, 385 U.S. 554 (1965), reh. denied, 386 U.S. 969 (1967). Under the facts of this case, we conclude that appellant has had a full judicial determination of this issue.*fn11

Appellant's third contention is that the trial court erred in refusing appellant's motion for withdrawal of a juror and declaration of a mistrial because of the testimony of Mrs. Barksdale; appellant challenges that testimony on the ground that it was irrelevant, prejudicial and tended to show that appellant had committed prior unrelated crimes. Appellant objected at trial to Mrs. Barksdale's testimony,*fn12 and the prejudicial character

[ 437 Pa. Page 446]

    of that testimony was raised in appellant's new trial motion. Accordingly, the admissibility of that testimony is properly before us.

Beyond question, Mrs. Barksdale's testimony was often unresponsive and highly colored by the obvious ill-will she bore the appellant. As discussed above, the Commonwealth's theory of the murder was that appellant's malice toward and intent to kill Mrs. Barksdale was transferred to Mr. Dennis and that this transfer of hostility provided the explanation for an otherwise motiveless killing. Under this theory, Mrs. Barksdale's testimony was relevant to the proof of appellant's motive and was therefore admissible.

It is well settled that "[e]vidence to prove motive, or intent, or plan, or design, or ill will or malice is always admissible." Commonwealth v. Kravitz, 400 Pa. 198, 216, 161 A.2d 861 (1960), cert. denied, 365 U.S. 846 (1961); Commonwealth v. Boden, 399 Pa. 298, 159 A.2d 894 (1960). Further, evidence of prior occurrences (e.g., previous threats) and prior offenses, if they are related to the offense for which defendant is on trial, may be admitted to show malice, motive, or intent. See Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1949); Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955); and Commonwealth v. Boulden, 179 Pa. Superior Ct. 328, 116 A.2d 867 (1955). In the present case, Mrs. Barksdale's testimony as to appellant's threats to her and his rape of her were relevant to the task of establishing appellant's settled pattern of malice as to her. The familial relationship of Dennis to Mrs. Barksdale, the fact that appellant had been seeking Mrs. Barksdale at the Dennis home and apparently believed that the Dennis' knew her whereabouts, and the fact that the murder followed Dennis' phone conversation with Mr. Barksdale are factors which, in our view, support the connection which the Commonwealth intended to establish between appellant's

[ 437 Pa. Page 447]

    settled pattern of malice toward Mrs. Barksdale and his slaying of Dennis.

Moreover, the trial judge carefully and explicitly instructed the jurors to disregard any opinions expressed by Mrs. Barksdale and any statements she made concerning appellant's alleged prior crimes.*fn13 On the facts of this case, we conclude that Mrs. Barksdale's testimony as to appellant's prior conduct was relevant to proving his malice toward her, and that given her relationship to Dennis proof of such malice was admissible on the question of appellant's motive for slaying Dennis.

A motion for the withdrawal of a juror is addressed to the sound discretion of the trial judge. Richman v. Watkins, 376 Pa. 510, 103 A.2d 688 (1954). We find no abuse of discretion in the refusal to grant that motion here, nor can we find that admission of the questioned testimony was error.

Appellant's final contention is that the admission into evidence of his statement to police without a prior determination by the trial court that the statement was voluntary constituted a denial of due process under the terms of Jackson v. Denno, 378 U.S. 368 (1964).*fn14 The

[ 437 Pa. Page 448]

    rule enunciated by Jackson has been given retroactive effect, and this issue would therefore ordinarily be available to appellant. Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965). Subsequent to the date of the Jackson decision, however, appellant initiated state habeas corpus proceedings in which he was represented by counsel. Appellant failed to question the voluntariness of his confession in those proceedings and, absent extraordinary circumstances which are not here alleged, he must be deemed to have waived the issue within the meaning of § 4 of PCHA. As indicated above, such a waiver is deemed a knowing bypass of an available state remedy; it precludes appellant from raising the issue in the present appeal. Commonwealth v. Satchell, supra. See, also, Henry v. Mississippi, 379 U.S. 443 (1965).

Judgment affirmed.


Judgment affirmed.

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