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COMMONWEALTH v. BUTLER (01/26/71)

decided: January 26, 1971.

COMMONWEALTH
v.
BUTLER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1946, No. 853, in case of Commonwealth of Pennsylvania v. Hazell Butler.

COUNSEL

Edward H. Weis, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Arthur R. Makadon, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Bell

[ 442 Pa. Page 31]

On December 15, 1945, appellant was arrested for the shooting of Gertrude Phillips. As a result of the shooting, Gertrude Phillips subsequently died, and on January 30, 1946, appellant was indicted for murder, voluntary manslaughter and involuntary manslaughter.

On May 1, 1946, a jury found the appellant guilty of murder in the first degree and fixed the penalty at life imprisonment. Motions for a new trial were filed, but on May 3, 1946, these motions were withdrawn and a judgment of sentence was pronounced and entered by the Court. Throughout all these proceedings, appellant was represented by counsel.

On June 7, 1967, appellant filed his first Post Conviction Hearing Act petition and Judge Sporkin granted

[ 442 Pa. Page 32]

    appellant the right to file motions for a new trial nunc pro tunc. These motions were filed on May 16, 1968, but were never argued or even listed for argument, and were never disposed of by the Court.

On February 17, 1969, a petition for a writ of habeas corpus was filed in the U. S. District Court for the Eastern District of Pennsylvania. This petition was denied for failure to exhaust State remedies.

On March 21, 1969, a second Post Conviction Hearing Act petition was filed (by counsel for appellant) and appellant was again granted the right to file motions for a new trial nunc pro tunc. These motions were filed and argument was heard by Judges Sloane, Sporkin and Doty, on April 23, 1970. From the denial of these motions, appellant took this appeal.

Appellant makes four contentions, all of which deal with the charge to the jury given by the late Judge Vincent A. Carroll. No specific exceptions were taken to the charge, ...


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