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COMMONWEALTH v. DILLINGER ET AL. (10/09/70)

decided: October 9, 1970.

COMMONWEALTH
v.
DILLINGER ET AL., APPELLANTS



Appeals from judgments of sentence of Court of Oyer and Terminer of Fayette County, March T., 1964, No. 14/66, in case of Commonwealth v. Robert Dillinger et al.

COUNSEL

James A. Lynn, with him Coldren & Adams, for appellant.

Henry R. Beeson, for appellant.

Conrad B. Capuzzi and Gerald R. Solomon, Assistant District Attorneys, with them Joseph E. Kovach, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result.

Author: Pomeroy

[ 440 Pa. Page 337]

In 1964, appellants, Robert Dillinger and James E. Kern, while represented by counsel, pleaded guilty to indictments charging them with the murder of one Joseph J. Illig. Illig had died seven days after he had been robbed and beaten severely by one or both defendants, the immediate cause of death having been a blood clot in the cerebral artery.

At the degree of guilt hearing the court determined that Dillinger was guilty of second degree murder and sentenced him to a term of 10 to 20 years imprisonment, and that Kern was guilty of first degree murder and sentenced him to life imprisonment. Pretrial statements of the defendants indicated that Kern had done the actual beating, but at the degree of guilt hearing Kern denied this and stated Dillinger was the chief

[ 440 Pa. Page 338]

    offender. No post-trial motions were filed, and no appeals were taken from the judgments of sentence.

In 1968, both appellants filed petitions under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180-1 et seq., alleging that they had been denied their right of appeal.*fn1 After appointment of counsel and hearings below, both petitions were found meritorious, and both appellants were granted leave to file post-trial motions nunc pro tunc. Both appellants thereafter filed motions in arrest of judgment, and appellant Kern filed a motion for leave to withdraw his guilty plea. The court below denied all of these motions, and these appeals followed. We affirm.

Kern's motion in arrest of judgment*fn2 and his motion to withdraw his guilty plea are both premised on an allegation that the testimony of the Commonwealth's medical experts at the degree of guilt hearing failed to establish beyond a reasonable doubt that ...


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