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COMMONWEALTH v. PENN (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
PENN, APPELLANT



Appeal from order of Court of Common Pleas of Dauphin County, No. 263 of 1969, in case of Commonwealth of Pennsylvania v. Ranzy Penn.

COUNSEL

Frederick W. Andrews, Assistant Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 444 Pa. Page 526]

Appellant shot and killed Jerome Brown on December 21, 1968. He was indicted for murder and for carrying a concealed deadly weapon. He was tried on the murder indictment and the jury found him guilty of voluntary manslaughter.

Jerome Brown died of a gunshot wound which appellant admits firing, but appellant claims that the

[ 444 Pa. Page 527]

    shooting was done in self-defense or accidentally. Prior to the shooting, appellant and Brown were involved in a fist fight in a tavern in Harrisburg. After the fight, appellant left the tavern, and as Brown was leaving the tavern appellant shot him with a rifle.

Following conviction, appellant was informed of his right to appeal, and signed a written waiver of this right. A sentence of from five to ten years' imprisonment was imposed.

On November 13, 1969, appellant filed a petition under the Post Conviction Hearing Act.*fn1 In this petition, appellant alleges that the Constitution of Pennsylvania and the Constitution of the United States prevent his being found guilty of voluntary manslaughter when the indictment was solely for murder. An answer to the P.C.H.A. petition was filed by the Dauphin County district attorney's office. As part of the answer, appellant was informed that all of his contentions or allegations had to be raised in a single P.C.H.A. petition and, therefore, if appellant had any other complaints, he should seek to amend the original petition so as to include them.

On December 31, 1969, an attorney was appointed to represent the appellant. On August 25, 1970, appellant's P.C.H.A. petition was denied by the lower Court without a hearing. The present appeal was taken from the denial of the P.C.H.A. petition.*fn2

Appellant's sole contention in this appeal is, we repeat, that the lower Court's denial of his P.C.H.A. petition was erroneous and ...


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