Appeal from order of Court of Common Pleas of Montgomery County, June T., 1958, No. 245, in case of Commonwealth of Pennsylvania v. Ethel Kravitz.
F. Lee Bailey and Gerald Alch of the Massachusetts Bar, and F. Emmett Fitzpatrick, Jr., for appellant.
William T. Nicholas, Executive Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurs in the result. Dissenting Opinion by Mr. Justice Roberts.
Appellant, Ethel Kravitz, was tried by a Judge and jury for the killing of her husband and, on December 12, 1958, was found guilty of murder in the second degree. Mrs. Kravitz, through her able attorneys, filed a motion in arrest of judgment and a motion for a new trial, assigning the customary reasons. Several months later, she filed twenty-one additional reasons to support her motion in arrest of judgment and forty-five additional reasons for a new trial. These post-trial motions were denied, and on appeal this Court affirmed, Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; and the United States Supreme Court denied certiorari, 365 U.S. 846. Appellant's subsequent claim to her husband's estate was denied by the Montgomery County Orphans' Court on the authority of the Slayer's Act,*fn* 14 Fid. Rep. 393, and we affirmed. Kravitz Estate, 418 Pa. 319, 211 A.2d 443.
On August 25, 1965, Ethel Kravitz filed in the United States District Court for the Middle District
of Pennsylvania a petition for a writ of habeas corpus, which was denied by that Court. The United States Court of Appeals for the Third Circuit affirmed that denial. In Re Kravitz, 358 F. 2d 734.
In 1968, appellant, now on parole after having been incarcerated for almost eight years, filed through her counsel a petition under the Post Conviction Hearing Act,*fn** Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1, et seq., alleging as the only ground for relief that certain damaging inculpatory statements, which she had made to the police and had been admitted at her trial, were involuntary. Approximately two months after Ethel Kravitz had filed her above-mentioned P.C.H.A. petition, she filed (through her attorney), a supplement thereto, alleging two additional grounds for relief: (1) references by the District Attorney and by the trial Judge to appellant's alleged failure to take a blood test, and (2) denial of effective assistance of counsel.
The Commonwealth thereupon filed a motion for dismissal of appellant's P.C.H.A. petition, on the grounds that the contentions set forth therein had either been "waived" or "finally litigated" under Section 4 of the Post Conviction Hearing Act. After oral argument, the lower Court granted the Commonwealth's motion to dismiss, and from that adverse Order, appellant took this appeal.
We will discuss appellant's three contentions in the order in which they were presented.
The Post Conviction Hearing Act provides, in pertinent part: "Section 3. Eligibility for relief. To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 and must prove the following: . . . (d) That the error resulting
in his conviction and sentence has not been finally litigated or waived. 1966, Jan. 25, P. L. (1965) ...