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COMMONWEALTH v. MUSSER (03/20/69)

decided: March 20, 1969.

COMMONWEALTH
v.
MUSSER, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Lancaster County, Sept. T., 1967, Nos. 186, 187A and 187B, in case of Commonwealth of Pennsylvania v. Gerald Christian Musser.

COUNSEL

Theodore S. Danforth, Public Defender, for appellant.

D. Richard Eckman, Assistant District Attorney, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissent.

Author: Per Curiam

[ 214 Pa. Super. Page 129]

Judgment of sentence affirmed.

Disposition

Judgment affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent. This is a direct appeal nunc pro tunc from guilty pleas entered November 10, 1967, on charges of conspiracy, assault with intent to kill and robbery. On April 11, 1968, appellant filed a petition under the Post Conviction Hearing Act claiming only that he had been denied the right to appeal. On May 15, 1968, the court below granted appellant the right to appeal nunc pro tunc.

In my judgment, the right to appeal was improperly granted. As I stated in my dissent in Commonwealth v. Alterio, 214 Pa. Superior Ct. 126, 251 A.2d 743 (1969) I do not believe it is ever appropriate except in homicide cases for a court in collateral proceedings to grant a direct appeal from a guilty plea. Instead, the post-conviction court is required to rule upon all claims which would be cognizable on direct appeal.

Although he did not raise the issue in his post-conviction petition, appellant contends in this appeal that his plea was involuntary. Appellant's claim is that he entered the plea because it was his only means of escaping the intolerable conditions in the Lancaster County Prison. In support of this, appellant states in his brief that he was held in solitary confinement for 5 weeks in October and November 1967. His cell was without adequate heat and he was unable to close the cell window, which was propped open from the outside. His bedding was filthy and his sanitary facilities encrusted with slime and excrement. He was confined without shoes for 3 weeks and special ...


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