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COMMONWEALTH v. MELTON (11/17/72)

decided: November 17, 1972.

COMMONWEALTH
v.
MELTON, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1958, No. 921, in case of Commonwealth v. Carl Melton.

COUNSEL

Louis M. Natali, Jr., with him Benjamin Lerner, Jack Himmelstein and Anthony G. Amsterdam, for appellant.

James D. Crawford, Deputy District Attorney, Mark Sandrow, Assistant District Attorney, with them Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 449 Pa. Page 224]

Rose Schloss was murdered and her husband brutally beaten when their home and delicatessen store were robbed on December 13, 1958. Appellant was tried before a jury and found guilty of murder in the first degree on April 23, 1959, with a sentence of death. Appellant's motion for a new trial was granted by the lower court, and that order was affirmed by this court, which dismissed the Commonwealth's appeal. Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961). On May 29, 1961, appellant pleaded guilty to murder. Thereafter, a three-judge court heard evidence and found appellant guilty of murder in the first degree and imposed the death sentence. An appeal to this

[ 449 Pa. Page 225]

Court followed, and the judgment of sentence was affirmed. Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962), cert. denied, 371 U.S. 851 (1962). Appellant was at all times represented by counsel.

Appellant then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, which was denied. U.S. ex rel. Melton v. Hendrick, 218 F. Supp. 293 (E.D. Pa. 1963), affirmed 330 F. 2d 263 (3d Cir. 1964). Appellant's clemency petition before the Pennsylvania Board of Pardons was also denied.

On October 17, 1968, appellant, through his counsel, filed a petition under the Post Conviction Hearing Act. A stay of execution was granted and the Commonwealth then filed an answer requesting that the petition be dismissed for failure to allege facts which would justify the granting of relief under the act, or under any decision or under any provision of the Constitution. In the intervening eleven months, neither appellant nor his counsel sought to amend the petition, and, on October 16, 1969, appellant's petition was dismissed without a hearing.

An appeal to our Court followed, and on July 13, 1970, without the benefit of oral argument, we affirmed the lower court's dismissal of the appellant's post-conviction petition. In the interim between the filing of the appeal and the announcement of our decision appellant obtained new counsel. We permitted the filing of a petition for reargument and, after consideration of the petition, we granted appellant the right to reargument.

In appellant's original petition, filed in 1968, the only reason stated in support of appellant's request for judicial review under the Post Conviction Hearing Act was a citation of our opinion in Commonwealth v. ...


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