decided: November 12, 1968.
Appeal from order of Court of Oyer and Terminer of Butler County, March T., 1960, No. 4, in case of Commonwealth v. George W. Craig.
Floyd A. Rauschenberger, Jr., for appellant.
Robert F. Hawk, Assistant District Attorney, and John H. Brydon, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. 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.
[ 432 Pa. Page 339]
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
[ 432 Pa. Page 340]
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. . . ."
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