Appeal from judgment of Court of Oyer and Terminer of Cambria County, March T., 1959, No. 40, in case of Commonwealth v. Stephen Paul Barnosky.
Thomas A. Young, Public Defender Administrator, for appellant.
William G. Shahade and Blair V. Pawlowski, Assistant District Attorneys, and Ferdinand F. Bionaz, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result.
On January 21, 1959, appellant Stephen Paul Barnosky shot and killed his eighteen year old son following a family quarrel. Counsel was appointed at the time of indictment and, on June 8, 1959, appellant pleaded guilty to murder generally. Following the degree of guilt hearing he was convicted of murder in the first degree and sentenced to life imprisonment. No appeal was taken.
Appellant petitioned for a writ of habeas corpus in 1963. The denial of that writ was affirmed by this Court in Commonwealth ex rel. Barnosky v. Maroney, 414 Pa. 161, 199 A.2d 424 (1964). We there decided that appellant's guilty plea was voluntary and that his wife was competent to testify against him because the case was a criminal prosecution for bodily injury to a minor child.
A PCHA petition was filed by appellant in 1967. Although he checked seven of the twelve boxes on the PCHA form, appellant's primary contention was that he was denied his right to appeal. The petition was denied without a hearing on October 20, 1967, on the dual grounds that he knew of his right to appeal and that he had waived any objection by failing to raise the issue in the previous habeas action. No appeal was taken from this denial.
Undaunted, appellant filed a second PCHA petition on December 18, 1968. It became apparent at the hearing held pursuant to that petition that appellant's fear of possibly receiving the death penalty on retrial played a major role in his decision not to appeal his original conviction. The hearing court correctly concluded that Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969), required that appellant be given the right to appeal directly from his conviction.
Appellant then filed a motion for a new trial. Before the trial court had an opportunity to rule on that motion appellant filed another motion, in which the district attorney joined, requesting leave to withdraw the motion for a new trial. The apparent reason for this action was appellant's belief that "the appellate procedure of Pennsylvania does not require a motion for a new trial to be filed prior to the allowance of an appeal."
In the normal situation it would be far wiser for a petitioner who has been granted the right to take a direct appeal as though timely filed to pursue his post-trial motions through to a conclusion. Such a course of action will usually result in a narrowing of the issues involved, thereby permitting appellate courts to focus their efforts on the crucial questions involved, rather than forcing them to expend their energies in a diffuse review of the entire case.*fn* However, since appellant's only contention in this Court involves the sufficiency of the evidence presented at his degree of guilt hearing, and since the record now before us is adequate for deciding this issue, and since the district attorney assented to the premature termination of the post-trial motions, no jurisprudential purpose would be served by refusing to decide this case in its current posture.
Appellant contends that because there was evidence that he was intoxicated at the time of the killing he should have been found guilty of at most second degree murder. It is quite true that ". . . where the charge is felonious homicide, intoxication which is so great as to make the accused incapable ...