Opinion
Submitted September 30, 1968.
November 12, 1968.
Practice — Petition for post-conviction relief — Order granting defendant right to appeal from conviction — Request by defendant to quash appeal — Desire to renew motion for new trial previously denied by trial court.
In this case, in which it appeared that defendant appealed from an order of the court below in a Post Conviction Hearing Act proceeding granting defendant the right to appeal from his conviction for first degree murder; that defendant requested that the appellate court quash the appeal, apparently on the theory that he was entitled to an evidentiary hearing to present support for his various claims; and that defendant's counsel seemed to base his appeal on a desire to renew defendant's motion for a new trial (which had been refused by the court below immediately after defendant's conviction), and to present evidence which would supplement the "old and incomplete trial record"; it was Held that at this stage of the proceedings all that defendant was entitled to was to have his appeal from the denial of his new trial motion heard, and the order of the court below was affirmed.
Mr. Justice MUSMANNO did not participate in the decision of this case.
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. 233, March T., 1968, from order of Court of Oyer and Terminer of Butler County, March T., 1960, No. 4, in case of Commonwealth v. George W. Craig. Order affirmed; reargument refused December 13, 1968.
Petition for post-conviction relief. Before KIESTER, P. J.
Order entered granting petitioner right to appeal from his conviction of first degree murder. Petitioner appealed.
Floyd A. Rauschenberger, Jr., for appellant.
Robert F. Hawk, Assistant District Attorney, and John H. Brydon, District Attorney, for Commonwealth, appellee.
This appeal curiously enough is from an order of the trial court in a Post Conviction Hearing Act proceeding, granting appellant the right to appeal from his conviction for first degree murder in 1960. Appellant requests that we quash the appeal, apparently on the theory that he is entitled to an evidentiary hearing to present support for his various claims. The history of this case is very confused, but the following facts seem established: appellant filed an unsuccessful motion for a new trial immediately after his conviction; he never appealed from his conviction; appellant has claimed in the past that he was denied his Douglas rights; he has filed several earlier habeas corpus petitions in federal court; he did not allege his Douglas claim in the present petition.
Appellant's counsel seems to base his appeal on a desire to renew his motion for a new trial and present evidence which will supplement the "old and incomplete trial record". This, of course, is just not possible while there is pending on appeal the review of the denial of a motion for a new trial. At this stage of the proceedings all appellant is entitled to is to have his appeal from the denial of his new trial motion heard. This right the hearing court granted him and noted "that the constitutional issues raised by this Post Conviction petition were litigated in the federal courts". Thus we must agree with the court below that the only relief available for appellant is "consideration by the Supreme Court of Pennsylvania of alleged trial errors. . . ."
Order affirmed.
Mr. Justice MUSMANNO did not participate in the decision of this case.
Mr. Justice COHEN took no part in the consideration or decision of this case.