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COMMONWEALTH v. PAVKOVICH (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
PAVKOVICH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Erie County, Feb. T., 1963, No. 88, in case of Commonwealth of Pennsylvania v. Steve Pavkovich.

COUNSEL

Edward W. Goebel, Jr., with him T. Warren Jones, and MacDonald, Illig, Jones & Britton, for appellant.

Robert H. Chase, Assistant District Attorney, with him Michael M. Palmisano, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones dissents.

Author: O'brien

[ 444 Pa. Page 531]

In 1963, appellant was found guilty, after a jury trial, of murder in the first degree. The jury fixed the sentence at life imprisonment, and that sentence was imposed. Thereafter, petitioner filed post-trial motions for a new trial and in arrest of judgment. After argument, these motions were denied, and the life sentence imposed at the conclusion of the trial was reimposed. No appeal from the judgment of sentence was prosecuted.

[ 444 Pa. Page 532]

Appellant subsequently filed a petition under the Post Conviction Hearing Act, in which he alleged, inter alia, that he had not knowingly and voluntarily waived his right of appeal from the judgment of sentence. An evidentiary hearing was held, and the post-conviction court found that appellant's decision to forego an appeal was, at least in part, based upon advice given to him by his trial counsel that if, on appeal, he were successful in winning a new trial, he would face the possibility of a death penalty after a retrial and conviction of first-degree murder. In view of this Court's decision in Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969) the post-conviction court granted petitioner leave to file post-trial motions nunc pro tunc. Such motions were filed and again denied, and the matter is now before us on direct appeal from the judgment of sentence.

Appellant first argues that he was prejudiced by the inclusion in the court en banc, which decided the post-trial motions filed subsequent to his post-conviction hearing, of a judge who had been the prosecuting attorney at his trial. The inclusion of that judge in the court en banc was error. A person who acted as counsel in a criminal case, on either the side of the prosecution or the defense, should not later participate in the matter as a judge. Com. ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963). In the instant case, however, we perceive no possible prejudice to appellant in what occurred, and the error was harmless. First of all, no objection to the inclusion of the judge in question was ever raised prior to the appeal to this court. Secondly, post-trial motions had already been filed and disposed of in this case immediately subsequent to trial, and the post-conviction court properly should have permitted the filing of an appeal from the judgment of sentence rather than allowing the filing of

[ 444 Pa. Page 533]

    new post-trial motions, that stage of the appellate process having already been completed. Finally, the post-trial motions presented subsequent to the post-conviction hearing were, with one exception to be discussed later, the same as those previously presented. The second court en banc simply denied those post-trial motions "on the basis of the opinion of the court en banc for this County dated June 20, 1963."

Appellant next complains that the totality of the circumstances surrounding his arrest and interrogation forbade the introduction at his trial of statements given by him to the police. This contention was not made in appellant's first post-trial motions, and since the post-conviction court was not required to allow the filing of a second set of post-trial motions, this issue could be disposed of summarily as not being timely raised. We have, nevertheless, considered the issue, and find it to be without merit. Initially, we observe that the statements introduced at appellant's trial were introduced without objection and that appellant, while testifying on his own behalf, testified to the same material contained in the statements given to the police, as well he might, since his statements, as well as his testimony, were designed to exculpate himself from criminal responsibility on the theory that the murder of which he was accused was in actuality an accidental homicide. Finally, a review of the record fails to reveal any basis for a finding that the statements given were involuntary.

Appellant next contends that the trial court erred in giving additional charge to the jury in response to a question asked by the jury during its deliberations. The jury, in effect, asked the trial judge whether, if it could not agree on the degree of guilt, it could compromise on the lesser ...


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