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decided: October 9, 1970.


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.


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 the beating which the decedent received caused the blood clot which

[ 440 Pa. Page 339]

    was the immediate cause of Illig's death. He concludes from this that he could not, therefore, be found guilty of murder, let alone murder in the first degree.

The defect in Kern's argument is his failure to appreciate the effect of his guilty plea and the nature of the degree of guilt hearing. "A voluntary plea of guilty is a formal confession of guilt and is equivalent to the jury verdict . . . it admits the facts pleaded in the indictment so as to obviate the necessity for corroborating evidence. Commonwealth ex rel. Hough v. Maroney, 425 Pa. 411, 229 A.2d 913 (1967)." United States ex rel. Crosby v. Brierley, 404 F. 2d 790, 797 (3d Cir. 1968). (Emphasis supplied.) Thus, when an accused pleads guilty to an indictment charging him with murder, he admits that a murder has been committed and that he is the perpetrator thereof. "A plea of guilty to murder generally is sufficient of itself to sustain a conviction of murder in the second degree. Commonwealth ex rel. Bostic v. Cavell, 424 Pa. 573, 576, 227 A.2d 662, 664 (1967)". Commonwealth v. Brown, 436 Pa. 423, 427, 260 A.2d 742 (1970); Commonwealth v. Stokes, 426 Pa. 265, 267, 232 A.2d 193 (1967). At the degree of guilt hearing, therefore, the Commonwealth had no burden of proving that Kern by his acts had committed a murder. The issue as to which proof was called for from the Commonwealth was the degree of the crime committed; on that issue the Commonwealth introduced evidence tending to show a serious beating inflicted upon the decedent by appellants in the course of committing a robbery. The evidence on this point was found sufficient by the trial court to prove beyond a reasonable doubt that Kern's admitted murder was murder in the first degree; its finding in this regard is adequately supported by the evidence and is not contested in this appeal.*fn3 Thus Kern's present allegation

[ 440 Pa. Page 340]

    that the Commonwealth's evidence was insufficient to establish that which his plea had already admitted presents no cognizable issue. It neither undermines the court's finding of first degree nor does it indicate that Kern's plea was involuntary, unknowing, or otherwise invalid. Any evidence of causation at the degree of guilt hearing was in fact surplusage, and any defect which there may have been in such evidence is not a ground for setting aside the judgment of sentence or for allowing a withdrawal of Kern's plea.*fn4

Kern has relied on Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968) for the proposition that evidence which establishes only probable causation is insufficient. In that case, however, the defendant had

[ 440 Pa. Page 341]

    pleaded not guilty, and the challenge to the evidence relative to causation was in light of the Commonwealth's burden to prove every element of the crime beyond a reasonable doubt. The difference in the pleas is, of course, crucial, and renders Radford quite inapposite. See Commonwealth v. Brown, supra, 436 Pa. at 426, 427.

With regard to Dillinger, the lower court's order granting leave to file post-trial motions nunc pro tunc was technically incorrect. It is well established that a defendant convicted of second degree murder following a plea of guilty to murder generally may contest only the validity of his plea and the lawfulness of his sentence. Because those issues are fully cognizable in collateral proceedings, a denial of the defendant's right to appeal is non-prejudicial and a petitioner's allegation that his right of appeal was abridged is not, standing alone, a basis for relief. See Commonwealth v. Stokes, supra, and Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968).

In his PCHA petition, Dillinger failed to raise either of the issues available to him; accordingly the lower court should have denied his petition without relief. Nevertheless, the court's subsequent order denying Dillinger's post-trial motions was in practical effect equivalent to a denial of his PCHA petition; we have treated the order as though properly made, and affirm.*fn5

Judgments of sentence affirmed.


Judgments of sentence affirmed.

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