Appeal from order of Court of Oyer and Terminer of Allegheny County, June T., 1956, No. 42, in case of Commonwealth of Pennsylvania v. Roy James Metz.
Joseph I. Lewis, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
In February 1957, Roy James Metz while represented by counsel entered a general plea of guilty to an indictment charging him with the murder of his wife. Judge Ellenbogen of Allegheny County accepted the plea after first ascertaining that the decision to so plead was appellant's. During the subsequent hearing, however, appellant testified that his wife's death was the result of an accidental shooting. The court, which was concerned about the disparity between appellant's testimony and his plea, questioned him further about his decision to enter a guilty plea; appellant responded: "The only reason I signed a guilty plea, your Honor, was that I felt guilty of being there, and that was all. I did not plead guilty to murder. I pleaded guilty to being in that house, and inasmuch as I am alive and my wife is dead, I thought that that's what I was pleading to. I did not plead guilty to murder. By The Court: Q. Mr. Metz, you did plead guilty to murder. A. Then I didn't understand the plea."*fn1
On the basis of this and similar testimony by appellant, the court ordered the guilty plea withdrawn and a plea of not guilty entered.*fn2
Thereafter appellant was tried before a jury and found guilty of murder in the first degree with the penalty fixed at life imprisonment. In Commonwealth v. Metz, 393 Pa. 628, 144 A.2d 740 (1958), this Court rejected appellant's sole assignment of error, that the evidence was insufficient to support the jury's verdict, and affirmed his conviction.
Shortly after the Post Conviction Hearing Act*fn3 became effective, appellant filed a petition thereunder alleging that his conviction was invalid by reason of the double jeopardy provision of the Pennsylvania Constitution.*fn4 Appellant does not challenge the Commonwealth's right, following the abortive plea hearing, to retry him for second degree murder, but maintains that it could not reprosecute him for first degree murder.*fn5
A hearing was held before Judge Ellenbogen on June 13, 1966, at which time appellant was represented by court-appointed counsel. In November, the petition was dismissed and this appeal followed.
Appellant's double jeopardy contention is premised upon the proposition that, since his guilty plea was itself a conviction, the court was obligated to determine the degree of guilt and to fix the penalty.*fn6 In support of this conclusion appellant cites several of our cases which have refused to permit the defendant to withdraw his guilty plea, and argues that since the hearing judge ...