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COMMONWEALTH v. ARMSTEAD (07/01/68)

SUPREME COURT OF PENNSYLVANIA


decided: July 1, 1968.

COMMONWEALTH
v.
ARMSTEAD, APPELLANT

Appeal 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.

COUNSEL

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.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: O'brien

[ 430 Pa. Page 429]

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

[ 430 Pa. Page 430]

    are convinced that the witnesses were telling the truth.*fn1 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.*fn2 See Commonwealth ex rel. Davis v. Russell, 422 Pa. 223, 220 A.2d 858 (1966)."

The order of the court below dismissing the petition is affirmed.

Disposition

Order affirmed.


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