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COMMONWEALTH v. YUKNAVICH (10/04/72)

decided: October 4, 1972.

COMMONWEALTH
v.
YUKNAVICH, APPELLANT



Appeals from order and judgment of Court of Common Pleas of Luzerne County, Sept. T., 1962, No. 37, in case of Commonwealth of Pennsylvania v. Paul Mitchell Yuknavich.

COUNSEL

Sandra Sernak, with her Gelb, Notarianni & Mullaney, for appellant.

Daniel Daly, Assistant District Attorney, and Patrick Toole, District Attorney, submitted a brief for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Concurring Opinion by Mr. Justice Manderino.

Author: Nix

[ 448 Pa. Page 504]

During the early morning hours of April 5, 1962, appellant, Paul Yuknavich, and Kenneth Souder set out to rob a Luzerne County service station. Pursuant to the prearranged plan, Yuknavich drove his car and parked in the vicinity of the service station. While appellant waited in the car, Souder left to rob the establishment. He had with him the revolver and ammunition which appellant had furnished. During the course of the robbery, the night attendant, George Allabaugh, engaged in gunfire with Souder, as a result of which Allabaugh was killed.

Appellant was arrested on April 27, 1962, and entered a guilty plea to the charge of murder on November 13, 1962. At the degree of guilt hearing the court determined that the killing of George Allabaugh was murder in the first degree and appellant was sentenced to life imprisonment. No direct appeal was taken from this judgment of sentence, but on March 27, 1968, appellant filed a petition in which he averred that he was

[ 448 Pa. Page 505]

    entitled to relief under the Post Conviction Hearing Act.*fn1 Evidentiary hearings were held and based upon testimony taken at the hearings and upon the trial record the hearing court concluded that neither the court nor the attorney of record advised appellant: of his right to appeal from the judgment of sentence; of the time within which the appeal had to be filed; of his right to the services of counsel; or that if he were unable to afford counsel the court would appoint counsel for the purposes of the appeal. Therefore, the relief sought by appellant in his petition insofar as it requested the right to an appeal was granted. This direct appeal followed.

Appellant also alleged that he was entitled to relief because (1) the felony-murder rule was incorrectly applied; (2) his guilty plea was unlawfully induced; and (3) he was denied his constitutional right to confront all witnesses by the admission into evidence of the co-defendant's confession. The post conviction hearing court denied these claims. Before us for decision therefore, is the propriety of the hearing court's decision with respect to these claims and also appellant's direct appeal from the judgment of sentence.

I.

Appellant's initial contention is that where an individual is not the actual perpetrator of the homicide the felony-murder rule should not operate as a conclusive presumption of malice. Appellant argues that the felony-murder rule should be modified so that a homicide committed by an accomplice during the perpetration of a felony would ...


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