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COMMONWEALTH v. DAVIS (08/04/71)

decided: August 4, 1971.

COMMONWEALTH
v.
DAVIS, APPELLANT



Appeal from order of Superior Court, April T., 1969, No. 408, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1968, No. 748, in case of Commonwealth of Pennsylvania v. Alonzo Davis.

COUNSEL

Edward Dangel, III, with him Alan Frank, for appellant.

Carol Mary Los, Assistant District Attorney, with her Robert W. Duggan, District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 444 Pa. Page 12]

Appellant, Alonzo Davis, was convicted of receiving stolen goods. While several issues lurk in this appeal,

[ 444 Pa. Page 13]

    our independent review of the record convinces us that there is insufficient evidence to prove beyond a reasonable doubt that appellant ever "received" the merchandise in question. Accordingly, we reverse.

Initially, we note that the conduct of appellant's self-retained counsel in this case offends the dignity of this Court and has deprived appellant of effective assistance of counsel. This case was argued on October 6, 1970. At that time, counsel for appellant had failed to file any brief, contrary to our rules of court. However, oral argument was permitted on the assurance that a brief would be forthcoming promptly, as the issues involved were complex and concerned developing areas of the law.*fn1 Our prothonotary has contacted both of appellant's counsel repeatedly since that time in an effort to have the brief submitted. More than nine months have passed since oral argument, and appellant's brief has yet to be made available. We are mystified by such flagrant disrespect to our Court and equally reprehensible jeopardizing of appellant's interests in violation of the canons of the Code of Professional Responsibility of the American Bar Association, formally adopted by our Court mandating that a lawyer represent his client competently and zealously within the bounds of law. One of appellant's counsel is not a member of the bar of this Commonwealth and was granted special permission to argue orally before our Court. He has abused that privilege. Had an examination of the record not disclosed a clear lack of sufficient evidence to support the conviction, we would have had to remand this case for the appointment of new counsel and additional argument, to the prejudice of appellant who remains incarcerated while his counsel follow other pursuits. Also, an unnecessary burden is added to the

[ 444 Pa. Page 14]

    appellate process. We strongly condemn counsels' behavior and will refer the matter to the appropriate authorities for further action.

The pertinent facts as set forth by the court en banc and viewed in the light most favorable to the Commonwealth, disclose the following. The narcotics squad of the Pittsburgh police department had the premises at 7818 Bennet Street, Pittsburgh under surveillance for a number of weeks. On April 25, 1968, the police entered the premises pursuant to a lawfully issued warrant and proceeded to conduct a search of the building for narcotics. A search was made of the first floor and the basement, for the police had information concerning an alleged hiding place in a powder room in the cellar. During this search the officers discovered four women's dresses with portions of the price tags still attached in a locked cupboard in the basement. The key to the cupboard was in the possession of appellant's mistress, Patricia Kendall Davis. Subsequent investigation disclosed that the dresses had been stolen, although there was a dearth of evidence as to how recently.*fn2

The dwelling was owned jointly by appellant's former wife, Colleen Davis, who was living at the time of the raid, and James and Henrietta Harris, her brother and sister-in-law, none of whom resided in the house. Patricia Kendal Davis, appellant's present wife and former mistress, lived in the first floor apartment. Appellant had clothing in the ...


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