Opinion
Submitted April 15, 1968.
July 1, 1968.
Criminal law — Criminal procedure — Practice — Murder — Plea of guilty — Sentence for second degree murder — Scope of direct review — Availability of same review in collateral proceeding — Denial of direct appeal.
In this case in which in 1960 after a plea of guilty to murder generally, defendant was found guilty of second degree murder and sentenced to imprisonment and was not informed of his right to appeal; and in this appeal from an order dismissing, after hearing, a petition under the Post Conviction Hearing Act defendant complained of the denial of his right to appeal, it was Held, in view of the fact that the only issues which would have been reviewable on a direct appeal would have been the validity of the plea of guilty and the lawfulness of the sentence, and both of these questions can be reviewed in a collateral proceeding, any denial of the right to direct appellate review was harmless error.
Mr. Justice COHEN took no part in the consideration or decision of this case.
Before BELL, C. J., MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 222, Jan. T., 1968, from order of Court of Oyer and Terminer of Philadelphia County, Jan. T., 1960, Nos. 629, 630 and 631, in case of Commonwealth of Pennsylvania v. Frank Armstead. Order affirmed.
Proceeding under Post Conviction Hearing Act.
Petition dismissed after hearing before GUERIN, J. Defendant appealed.
Frank Armstead, appellant, in propria persona.
Walter M. Phillips, Jr. and Michael J. Rotko, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
This is an appeal from an order of the Court of Oyer and Terminer of Philadelphia County, dismissing, after hearing, a petition seeking relief under the Post Conviction Hearing Act. Appellant was convicted on May 18, 1960, of second degree murder, after a plea of guilty to murder generally. He was sentenced to a term of ten to twenty years. No appeal was taken from the judgment of sentence.
Appellant claims that he was denied the right to appeal. He testified that he was ignorant of his right to appeal, and his trial counsel testified that he never informed appellant of his right to appeal. This testimony was undisputed by the Commonwealth, and we are convinced that the witnesses were telling the truth. However, even accepting as true appellant's testimony, relief was properly denied. The instant situation was faced recently by this Court in Com. v. Stokes, 426 Pa. 265, 267, 232 A.2d 193 (1967), where we stated: "Appellant's allegation that he was denied the right to appeal his conviction is not well founded. A plea of guilty to murder generally is sufficient of itself to sustain a conviction of murder in the second degree. Commonwealth ex rel. Bostic v. Cavell, 424 Pa. 573, 576, 227 A.2d 662, 664 (1967). Thus the only issues which would have been available for appellant to challenge on direct review would have been the validity of the plea and the lawfulness of the sentence. [footnote omitted] But since both these claims are cognizable in a collateral proceeding, the denial of the right to appellate review, even if true, would not be prejudicial. See Commonwealth ex rel. Davis v. Russell, 422 Pa. 223, 220 A.2d 858 (1966)."
Inasmuch as no opinion was written by the trial judge, it is impossible to determine exactly what his reasons for dismissing the petition were.
Armstead has already made both challenges collaterally. He unsuccessfully challenged his sentence in a prior Post Conviction Hearing Act petition, and he unsuccessfully challenged the validity of his guilty plea in a federal habeas corpus action, the appellate report of which is United States ex rel. Armstead v. Rundle, 381 F.2d 370 (3d Cir. 1967). [footnote added]
The order of the court below dismissing the petition is affirmed.
Mr. Justice COHEN took no part in the consideration or decision of this case.