Opinion
Submitted October 1, 1970.
November 12, 1970.
Criminal Law — Practice — Post-conviction relief — Issue finally litigated — Issue previously raised by defendant while represented by counsel in habeas corpus action — Order unappealed from.
In this proceeding for post-conviction relief, in which it appeared that the sole reason asserted in support of relief was that an alleged coerced confession was used as evidence against defendant at trial in violation of constitutional due process; that this identical question had previously been raised by defendant while represented by counsel in a habeas corpus action, which was dismissed by the court below; and that defendant had not appealed from the order of the court below in that action, and there was no allegation in the instant case that the failure to appeal was due to any lack of knowledge or understanding on the part of defendant as to his appeal rights; it was Held, in the circumstances, that the issue had been finally litigated.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 175, March T., 1970, from order of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1955, No. 58, in case of Commonwealth of Pennsylvania v. John P. Isenberg. Order affirmed.
Petition for post-conviction relief.
Petition dismissed without hearing, opinion by ELLENBOGEN, P. J. Petitioner appealed.
John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
This is an appeal from an order in the court below dismissing without hearing a petition seeking post-conviction relief.
In 1955 appellant, following his conviction by a jury in Allegheny County of murder in the second degree, was sentenced to a term of ten to twenty years. He was paroled in 1966, but subsequently was recommitted as a parole violator.
The sole reason asserted in support of post-conviction relief is that an alleged coerced confession was used as evidence against appellant at trial in violation of constitutional due process. This identical question was raised by the appellant in a habeas corpus action filed in 1964, and after an evidentiary hearing, the trial court dismissed the action based on its finding that the evidence did not support the allegation that the confession was coerced. The appellant was represented by counsel in this action and did not appeal from the court's order, and there is no allegation in the present proceedings that the failure to appeal was due to any lack of knowledge or understanding on the part of the appellant as to his appeal rights. Under such circumstances, the issue has been finally litigated. See Commonwealth v. Butler, 435 Pa. 46, 254 A.2d 645 (1969), and the Act of January 25, 1966, P. L. (1965) 1580, § 4(a)(1), 19 P.S. 1180, § 4(a)(1) (Supp. 1970).
Order affirmed.