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COMMONWEALTH v. CHRISTMAN (11/12/68)

decided: November 12, 1968.

COMMONWEALTH
v.
CHRISTMAN, APPELLANT



Appeals from judgment of Court of Oyer and Terminer of Allegheny County, Feb. T., 1951, No. 104, and from order of Court of Common Pleas of Allegheny County, Jan. T., 1966, No. 2180, in case of Commonwealth v. William Christman.

COUNSEL

Anthony C. Troiano, Assistant Trial Defender, with him Daniel T. Zamos, Assistant Director, and George H. Ross, Director, for appellant.

Charles B. Watkins, Assistant District Attorney, with him Carol Mary Los, 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. Mr. Justice Musmanno did not participate in the decision of this case.

Author: Roberts

[ 432 Pa. Page 457]

In 1951 appellant was convicted of murder in the first degree and was sentenced to life imprisonment. No appeal was taken. In 1967 appellant filed a writ of habeas corpus, claiming (1) that he had not been represented by counsel at the time of his sentencing; (2) that he had not had a separate hearing to determine the validity of his allegedly involuntary confession; (3) that the trial judge had denied appellant his right to counsel by directing him to remain silent while a witness was being cross-examined; and (4) that appellant did not know his right to appeal, nor of his right to have counsel appointed to perfect an appeal as required by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).

A hearing was held on appellant's petition, after which Judge Ellenbogen concluded that appellant had not been represented by counsel at sentencing. Accordingly, appellant's sentence was vacated and Judge Ellenbogen, later sitting as sentencing judge, reimposed a life sentence on appellant, who then of course was represented by counsel. Appellant was also given a hearing under Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), to determine the validity of his confession;

[ 432 Pa. Page 458]

    this issue, as well as appellant's claim that he had been denied the right to counsel at trial, was determined adversely to appellant. The hearing judge did not decide appellant's denial of the right to appeal claim because he felt that his determination that appellant "is entitled to be resentenced, with counsel present, will automatically afford him the right to file an appeal within the prescribed time limits . . . ." Appellant has appealed from the resentencing and from the determinations made at his collateral hearing.

Reimposition of Sentence

Appellant apparently has appealed from the reimposition of a life sentence, but it is unclear on what his claim is based. In his brief, appellant's counsel merely reiterates that appellant was denied counsel at his original sentencing, notes that as a result the sentence was vacated for imposition of a new sentence, and states that "the Court's attention is directed to this procedure." Unfortunately, our attention is not directed to anything that might be improper about this procedure. Surely appellant is not arguing that his new sentence must be different from his original sentence. Nor is there anything wrong with having the same judge who granted appellant the right to a resentencing preside over that resentencing.

Voluntariness of Appellant's Confession

After the Jackson hearing, the court ruled that appellant's confession was voluntary. Appellant's confession was not available, having apparently been lost by the district attorney's office, and ...


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