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COMMONWEALTH PENNSYLVANIA v. DONALD SYLVESTER JONES (03/24/82)

submitted: March 24, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD SYLVESTER JONES, APPELLANT



No. 68 Harrisburg, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Dauphin County at No. 120 C.D. 1975.

COUNSEL

Robert Niels Tarman, Public Defender, Harrisburg, for appellant.

William H. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wickersham, Rowley and Watkins, JJ.

Author: Wickersham

[ 301 Pa. Super. Page 365]

On March 20, 1975 Jones was found guilty of third degree murder after a jury trial. Jones was awarded a new trial for reasons not relevant to this case; after another jury trial, the Honorable Warren G. Morgan presiding, Jones was again convicted of third degree murder. Judge Morgan sentenced Jones to a ten to twenty year prison term and Jones took a direct appeal. The Pennsylvania Supreme Court affirmed the judgment of sentence in a per curiam opinion. Commonwealth v. Jones, 477 Pa. 593, 385 A.2d 946 (1978).

Jones next filed a petition for habeas corpus relief alleging that he was unconstitutionally confined because he was imprisoned at some distance from his home town, making family visits difficult. This petition was denied. Jones then filed a petition under the Post Conviction Hearing Act*fn1 (hereinafter PCHA or Act). Counsel was appointed to assist Jones in his petition, which alleged that he was prejudiced at trial by the prosecutor's reference to and display of exhibits which were not entered into evidence as well as by trial and appellate counsel's failure to object to the display of exhibits. Judge Morgan rejected these contentions without a

[ 301 Pa. Super. Page 366]

    hearing on the ground that the supreme court considered these issues in its decision on Jones' direct appeal. No appeal was taken from this dismissal of Jones' first PCHA petition.

Jones filed another PCHA petition on September 17, 1980. Counsel was again appointed to assist Jones in his petition. In an amended PCHA petition prepared by counsel Jones alleged that several photographs admitted into evidence at his trial were inflammatory and that the trial judge abused his discretion by overruling trial counsel's objections to admission of the photographs. Jones also alleged that his appellate counsel rendered ineffective assistance by failing to preserve the issue of the photographs on appeal and that his first PCHA counsel rendered ineffective assistance by failing to raise the issue of appellate counsel's alleged ineffectiveness. Judge Morgan dismissed this second petition, again without a hearing, and this appeal timely followed.

On December 25, 1974, Jones visited his cousin, Cheryl Williams in the City of Harrisburg. Cheryl Williams was living with her boyfriend, Robert Bedney. Williams and Bedney had an argument and Jones ordered Bedney out of the house at gunpoint. Jones followed Bedney outside, a short time later shots were heard. Jones returned to the house, told his cousin he shot Robert Bedney and left. When the police came they found Robert Bedney lying dead on the porch. Bedney had received four gunshot wounds, including three to the head. At trial Jones claimed he shot Bedney in self-defense.

During Jones' trial, pictures taken at the autopsy performed on the body of Robert Bedney were admitted into evidence over the objection of trial counsel. The objection to admission of the autopsy photographs was not raised in post-trial motions, direct appeal or in the first PCHA petition.

Before addressing the merits of Jones' arguments before us we must determine whether the judge below was correct in dismissing Jones' petition ...


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