Com. v. Faison

Citation264 A.2d 394,437 Pa. 432
PartiesCOMMONWEALTH of Pennsylvania v. Lamar FAISON, Appellant.
Decision Date25 March 1970
CourtUnited States State Supreme Court of Pennsylvania

Joph Patrick Walsh, [437 Pa. 434] Paul J. Cody, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Michael M. Baylson, Asst. Dist. Attys., Philadelphia, for appellee.



POMEROY, Justice.

On July 13, 1951, appellant Lamar Faison shot and killed on Harold R. Dennis. The following day appellant was apprehended and charged with murder. In May 1952, following a trial by jury at which he was represented by privately-retained counsel, appellant was found guilty of murder in the first degree, and his penalty was fixed at life imprisonment. Thereafter, appellant's trial counsel filed a motion for new trial which was denied by the trial court after a hearing. In accordance with the penalty fixed by the jury, the appellant was sentenced to life imprisonment. At the close of the hearing, appellant's attorney, speaking on the record, informed appellant that he had forty-five days in which to file an appeal from the judgment of sentence. Thereupon he moved to withdraw as counsel for the appellant and was granted permission to do so by the trial court. No appeal was taken.

In 1967 appellant filed successive petitions for writs of habeas corpus in the Court of Quarter Sessions of Philadelphia County 1 and in the District Court of the United States for the Eastern District of Pennsylvania. 2 Both these petitions were denied; neither denial was appealed. Thereafter in September 1967, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. 1180--1 et seq., alleging Inter alia the obstruction of his right to appeal and requesting as relief the 'right of direct appeal Nunc pro tunc.' At a hearing limited to the issue of appellant's right to appeal, the lower court found that after his trial counsel had withdrawn, appellant had requested the trial court to appoint counsel, but this request was denied. The hearing court further found that appellant at that time was unable to afford counsel for the prosecution of an appeal. 3 On these facts the court concluded that Faison had been denied his Douglas rights and he was 'granted 45 days to appeal your (petitioner's) initial trial to the State Supreme Court.' 4 Before treating the questions presented by this appeal, it is necessary to state briefly the facts surrounding the death of Harold Dennis as they were adduced at trial. All parties agreed that appellant had in fact shot and killed Dennis in the parlor of the Dennis home. The issues at trial were whether the shooting had been in self-defense, and the nature and degree of the homicide involved. The Commonwealth's principal witnesses were Mrs. Effew Dennis, wife of the deceased, and Mrs. Flossie Barksdale, Mrs. Dennis' sister. Mrs. Dennis was present at the time of the shooting and was herself shot twice during the ensuing struggle. At trial, Mrs. Dennis gave an eyewitness account of the incident. According to her narrative, appellant came to their house seeking Mrs. Barksdale; after having joined them for dinner and as he was about to leave their home, he confronted them with a gun and without provocation shot Mr. Dennis.

The bulk of Mrs. Barksdale's testimony, which was discursive and occasionally unresponsive, 5 concerned her relationship with appellant. Mrs. Barksdale testified that she had been seeing appellant for some ten months prior to the murder. Their relationship, according to her account, had begun when appellant had followed her home one night after work and raped her; she stated that she continued to see appellant after that time only because he threatened to kill her and her three children if she left him or refused to comply with his wishes. Mrs. Barksdale further testified that appellant had once held her captive in his room for three days, and that in connection with his threats to her he had repeatedly pointed at her the same pistol which he used in the slaying of Dennis. This testimony was presented by the Commonwealth in support of its theory of the murder, Viz., that appellant, angered that Mrs. Barksdale had left him, had gone to the Dennis home in search of her; suspecting that Mr. Dennis was assisting Mrs. Barksdale in eluding him, appellant transferred his malice and anger to Dennis and shot him.

The Commonwealth's theory was apparently derived from, and was supported by, a five page statement appellant made to the police when he was apprehended the morning after the slaying. Appellant was arrested in a taproom-restaurant after he had told the owner that he had shot a man, in full anticipation that the police would be called. The statement in question was made to the police some three hours after appellant was apprehended and after appellant had been formally interrogated by the police for approximately one-half hour. The statement was given after appellant had been told of the charge on which he had been arrested, warned that anything he said could be used against him, and informed that he was entitled to a lawyer. Appellant in this statement specifically noted that the account contained therein was true and that the statement was given voluntarily. His account of the previous day's events supported his own contention that the slaying was an act of self-defense. The statement was read to the jury by the interrogating officer as part of the Commonwealth's case. 6

According to the appellant's statement to the police, the facts of the case were as follows: On the day of the murder, Mrs. Dennis told appellant that Flossie would be telephoning her at Mrs. Dennis' home in the afternoon. Appellant thereafter went to the Dennis' but found that Mrs. Barksdale had not been heard from. He then went to her home, let himself in through the front window, and again failing to find her, returned to the Dennis' and had dinner with them. While he was there, Mr. Dennis received a phone call from Mr. Barksdale, Flossie's husband. When Dennis finished speaking with Barksdale, he accused appellant of having broken into the Barksdale home, and appellant heatedly denied the accusation. Dennis then threatened to kill appellant, and advanced on him with a open switch blade knife. When Dennis gave appellant no chance to leave the room, appellant shot him once in the chest. He stated that he had gone to the Dennis' home hoping to find Mrs. Barksdale who he 'intended to kill' because '(she) treated me so dirty,' and he concluded that 'what all the trouble come from was Flossie.'

The case for appellant was predicated on the theory of self-defense. Appellant testified in his own behalf at considerable length and corroborated the narrative which he had given the police in all material respects: He testified that after he had dined with the Dennis' and as he was about to leave their home, Dennis received a phone call. When Dennis hung up, he accused appellant of having broken into the Barksdale home. When appellant denied this, Dennis threatened to kill him, and advanced on him with a switch blade. Appellant testified that he asked Dennis to let him leave, and that he shot Dennis only when he continued to threaten him and when he was some few feet distance from him. Appellant further testified that he never intended to kill Mrs. Barksdale, although he admitted that he may have made comments to the contrary while he was in custody. When cross-examined about his confession which he had given to the police, appellant repeatedly stated that he did not remember signing the statement but that he would not deny that he had made and signed it. He stated that at the time of his arrest he had been drinking and was upset and not at all himself.

On this appeal, Faison raises four questions for this Court's consideration: (1) whether appellant was denied his constitutional right to the effective assistance of counsel when his attorney raised only three questions on voir dire and directed those questions to the jurors as a panel rather than questioning them individually; (2) whether the introduction of evidence of appellant's prior criminal record--three previous homicide convictions--was a denial of due process; (3) whether the trial court erred in permitting the Commonwealth to introduce, over appellant's objection, allegedly irrelevant and prejudicial testimony of Mrs. Barksdale; and (4) whether the admission into evidence of his statement to the police without a preliminary determination of its voluntariness by the trial judge outside the presence of the jury was a denial of due process. The threshold problem, however, is the determination of which, if any, of these questions is properly before us at this time.

As indicated above, this is a direct, albeit belated, appeal from the original judgment of sentence imposed upon appellant by the Philadelphia County Court of Oyer and Terminer. In such a Nunc pro tunc appeal taken pursuant to a finding that the appellant was denied his Douglas rights, the appellant may raise only those issues which might have been pressed on a timely appeal. The ordinary standards governing the scope of appellate review are complicated, however, in two respects by the time interval between the judgment of sentence and the Nunc pro tunc appeal: (1) intervening court decisions which declare new rights, constitutional or otherwise, may affect the grounds of appellant's appeal, providing a basis for relief which was not available during appellant's original appeal period; and (2) post conviction or collateral proceedings initiated by appellant between sentence and appeal may affect those issues which he may properly press on appeal.

As to the first complicating factor, we hold that an appellant may press on a Nunc pro tunc appeal an issue premised on a constitutional right which was...

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