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COMMONWEALTH PENNSYLVANIA v. CALVIN DIXON (12/01/77)

decided: December 1, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
CALVIN DIXON, APPELLANT (FOUR CASES)



COUNSEL

Elias B. Landau, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Jane C. Greenspan, Philadelphia, for appellee.

O'Brien, Justice. Nix, J., files a concurring opinion. Eagen, C. J., and Pomeroy, J., dissent.

Author: O'brien

[ 475 Pa. Page 367]

OPINION OF THE COURT

On March 24, 1972, appellant, Calvin Dixon, was convicted by a judge sitting with a jury of murder of the second degree and conspiracy in connection with the homicide of Reginald Fairbrough. Post-verdict motions were denied on October 25, 1972, and appellant was sentenced to seven and one-half to fifteen years imprisonment on the murder-of-the-second-degree conviction, and a consecutive one-to-two-year sentence on the conspiracy conviction.

In November of 1972, appellant filed a pro se direct appeal to this court from the murder conviction. After filing the appeal, appellant retained appellate counsel different from trial defense counsel.

On November 30, 1973, appellant's pro se appeal to this court was nol prossed. On March 14, 1975, appellant filed a pro se Post Conviction Hearing Act Petition. In April of 1975, present appellate counsel was appointed to assist appellant in pursuing that petition.

On November 5, 1975, appellant was granted the right to appeal nunc pro tunc to this court; all other post-conviction relief was denied.*fn1 The basis for granting appellant the right to appeal nunc pro tunc was that the initial appellate counsel failed to pursue the 1972 direct appeal. On November 20, 1975, appellant filed a nunc pro tunc direct appeal in this court from the murder conviction (No. 141) and he also filed a direct appeal from the denial of additional Post Conviction Hearing Act relief (No. 142).

On December 2, 1975, appellant filed two appeals in the Superior Court. Appeal No. 171 was the nunc pro tunc appeal on the conspiracy conviction and appeal No. 172 was from the denial of Post Conviction Hearing Act relief as it related to the conspiracy conviction. On December 9, 1975,

[ 475 Pa. Page 368]

    the Superior Court certified appeals Nos. 171 and 172 to this court for disposition with the direct appeals from the murder conviction and denial of post-conviction relief.

For purposes of discussion, we will treat the nunc pro tunc direct appeals to this court at No. 141 and the Superior Court at No. 171 separately from the appeal to this court at No. 142 and the appeal to the Superior Court at No. 172 from the Post Conviction Hearing Act order denying additional relief.

APPEALS Nos. 141 and 171

Appellant argues that the suppression court erred in failing to suppress his oral statements for failure to give the ...


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