Opinion
Argued November 18, 1971
Decided June 28, 1972
Criminal Law — Proceedings for post-conviction relief — Issue finally litigated — Alleged involuntariness of incriminating statement given to police.
1. In this case, in which it appeared that defendant contended that due process was violated at trial by the evidentiary use of an incriminating statement given by defendant to police allegedly under circumstances which rendered it involuntary; that no objection was made to the introduction of this evidence at trial; and that the admissibility of the statement was challenged in a counseled habeas corpus action and resolved adversely to defendant by the trial court, and the denial of relief was affirmed on appeal; it was Held that the issue had been finally litigated and might not be relitigated again.
Criminal Law — Evidence — Prior convictions of defendant for burglary — Murder trial — Evidence introduced to assist jury in fixing penalty under the then prevailing rule.
2. In this case, in which it appeared that defendant was convicted of murder in the first degree, it was Held that the introduction into evidence of the record of defendant's prior convictions for burglary, under the then prevailing rule to assist the jurors in fixing the penalty in the event they found defendant guilty of first degree murder, did not constitute reversible error.
The former Mr. Chief Justice BELL and the former Mr. Justice BARBIERI took no part in the consideration or decision of this case.
Before JONES, EAGEN, O'BRIEN, ROBERT and POMEROY, JJ.
Appeal, No. 53, Jan T., 1972, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1954, No. 164, in case of Commonwealth of Pennsylvania v. Peter Pawlishyn. Judgment affirmed.
Indictment charging defendant with murder. Before FORREST, J.
Verdict of guilty of murder in first degree and judgment of sentence entered. Nunc pro tunc motion for new trial denied and defendant granted the right to file an appeal nunc pro tunc. Defendant appealed.
Harry L. Green, Jr., Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
On April 7, 1955, Peter Pawlishyn was convicted by a jury in Montgomery County of murder in the first degree, and the punishment was fixed at life imprisonment. The court imposed the sentence the jury directed and no appeal was entered. However, in 1967 Pawlishyn filed a petition seeking post-conviction relief and, after an evidentiary hearing, the court concluded Pawlishyn had not effectively waived his right to appeal from the judgment of sentence and entered an order permitting post trial motions to be then filed, as if timely filed. Such motions were filed and subsequently dismissed. This appeal followed.
Although the sufficiency of the evidence to sustain the jury's verdict is not questioned, we have examined the record and satisfied ourselves that the trial evidence warranted a finding of guilt of murder in the first degree. This question need not therefore detain us.
The prime claim of error is that due process was violated at trial by the evidentiary use of an incriminating statement given by Pawlishyn to the police allegedly under circumstances which rendered it involuntary. No objection to the introduction of this evidence was voiced at trial. Moreover, the admissibility of the statement was challenged in a counseled habeas corpus action in 1965, and resolved adversely to Pawlishyn by the trial court. We subsequently affirmed the denial of relief. See Commonwealth ex rel. Pawlishyn v. Myers, 423 Pa. 632, 222 A.2d 599 (1966). The issue has, therefore, been finally litigated and may not be relitigated again. See Section 4 of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 4, 19 P.S. 1180-4 (Supp. 1972). See also, Commonwealth v. Isenberg, 440 Pa. 541, 271 A.2d 215 (1970).
It is also claimed error was committed at trial by permitting the introduction into evidence of the record of Pawlishyn's two prior convictions for burglary. There is no merit to his contention. See Commonwealth ex rel. Marino v. Myers, 419 Pa. 448, 451-2, 214 A.2d 491 (1965).
Judgment affirmed.
The former Mr. Chief Justice BELL and the former Mr. Justice BARBIERI took no part in the consideration or decision of this case.