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COMMONWEALTH v. SMITH (06/01/71)

decided: June 1, 1971.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, Sept. T., 1953, No. 1, in case of Commonwealth v. George D. Smith.

COUNSEL

Richard D. Walker, Public Defender, for appellant.

Jerome T. Foerster, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

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

Author: Pomeroy

[ 443 Pa. Page 152]

In September, 1953, appellant was convicted by a jury of a felony murder arising out of an attempt to

[ 443 Pa. Page 153]

    perpetrate a robbery, and sentenced to life imprisonment. No appeal was taken, but in 1968, through a PCHA*fn1 petition, appellant asserted that he had never been informed of his right to appeal. Post-trial motions nunc pro tunc were allowed,*fn2 and thereafter a new-trial motion was dismissed. This direct appeal followed.

The facts can be briefly summarized: In the early morning hours of July 16, 1953, appellant and his two confederates planned to rob a gasoline station-motel complex situated along state highway Route 22, east of Harrisburg, Pennsylvania. Under the pretext of desiring to rent a room, appellant and one of his co-conspirators lured the 79 year old attendant, David W. Fawber, into one of the motel cabins. When appellant produced his pistol and informed the attendant this was a "stick-up", Fawber began to shout. Appellant struck Fawber on the head with his pistol three times; the weapon discharged on the third blow. The bullet penetrated Fawber's skull and caused his death.

The three men fled to Cleveland, Tennessee, where they were arrested on July 18, 1953. A search of their persons disclosed that appellant was carrying the murder weapon in his pocket. A subsequent search of the automobile in which the trio was traveling revealed an extra clip and a bag of shells for the weapon.

The following day, July 19, representatives of the Pennsylvania State Police arrived at the Bradley County, Tennessee jail where Smith and his companions

[ 443 Pa. Page 154]

    were detained. The subjects voluntarily signed extradition papers and were escorted ...


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