decided: May 22, 1974.
Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1942, No. 82, in case of Commonwealth of Pennsylvania v. John Henry Hill.
John H. Corbett, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Richard Douglas Carleton, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
[ 457 Pa. Page 2]
In 1942, John Henry Hill pleaded guilty to murder generally, was convicted of murder in the first degree, and was sentenced to life imprisonment. In 1973, following two post-conviction proceedings and an evidentiary hearing, the trial court dismissed appellant's post-trial motions allowed as if timely filed. On this
[ 457 Pa. Page 3]
direct appeal,*fn1 Hill contends that the absence of the transcript of his 1942 degree of guilt hearing prevents him from effectively challenging the sufficiency of the evidence raising his degree of guilt to murder in the first degree. More precisely, the issue presented is the adequacy of the available record to establish felony murder.
Our review of the existing record satisfies us that there presently is an equivalent picture of appellant's 1942 degree of guilt hearing. Commonwealth v. Anderson, 441 Pa. 483, 493, 272 A.2d 877, 882 (1971); see Draper v. Washington, 372 U.S. 487, 495, 83 S. Ct. 774, 779 (1963). The available record contains evidence sufficient to prove beyond a reasonable doubt that the charge of murder to which appellant pleaded guilty was established to be murder in the first degree. The judgment of sentence must be affirmed.
Appellant and two others were arrested for the robbery of Henry Vesely and for the robbery and murder of Joseph Ramoska. Both crimes were committed in close physical proximity early on the morning of May 14, 1942. While represented by privately-retained counsel,*fn2 Hill entered pleas of guilty to the Vesely robbery and the Ramoska murder. Following a hearing, the court found the murder of Ramoska to
[ 457 Pa. Page 4]
be murder in the first degree and on October 13, 1942, sentenced appellant to life imprisonment.*fn3 No direct appeal was then taken.
In 1961, Hill's minimum sentence on the murder conviction was commuted, and he was released on parole. However, in 1965, he shot his girlfriend and threatened police officers with a revolver. As a consequence, Hill was indicted for assault and battery with intent to kill, assault and battery with intent to maim, pointing firearms, assault, violation of the Uniform Firearms Act, and resisting arrest. He entered counseled pleas of guilty to all these charges; his parole was revoked and on March 15, 1966 an additional concurrent sentence of one to two years imprisonment for assault with intent to kill was imposed.*fn4 Sentence was suspended on the other charges. On December 8, 1970, Hill was paroled for a second time, and has since remained on parole.*fn5
[ 457 Pa. Page 5]
Shortly after his 1966 recommitment, Hill filed a petition under the Post Conviction Hearing Act*fn6 challenging his 1942 conviction of murder in the first degree.*fn7 After a counseled evidentiary hearing, relief was denied. This Court affirmed, holding that appellant's plea of guilty was knowingly, intelligently, and voluntarily entered, that his 1942 trial counsel was not ineffective, and that the trial court had jurisdiction. Commonwealth v. Hill, 427 Pa. 614, 235 A.2d 347 (1967).
Thereafter, in November, 1968 and in May, 1969, appellant filed additional pro se post-conviction petitions which were treated by the PCHA court in a single proceeding. In those uncounseled petitions, Hill contended that he had not been advised in 1942 of his right of appeal.*fn8 The PCHA court, believing this issue to be waived because it was not raised in Hill's 1966 counseled petition,*fn9 dismissed the petitions without a hearing. Appellate counsel was then appointed and on July 15, 1971, this Court reversed and remanded
[ 457 Pa. Page 6]
the case for a counseled evidentiary hearing to determine whether appellant's right to raise the issue of denial of appeal was waived,*fn10 and, if not, whether he in fact was denied his right of appeal. Commonwealth v. Hill, 444 Pa. 75, 279 A.2d 170 (1971).
In conformity with our remand, a counseled hearing was conducted on January 11, 1972. The hearing court concluded that appellant had not waived his right of appeal. And on December 8, 1972, more than thirty years after conviction, Hill was allowed to file a motion for a new trial, as if timely filed, and to pursue his appellate rights in accordance with the mandate of Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), and Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). See Commonwealth v. Crowson, 450 Pa. 218, 299 A.2d 318 (1973); Commonwealth v. Gilmer, 441 Pa. 170, 270 A.2d 693 (1970). The Commonwealth took no appeal.
Post-trial motions were then filed. The notes of testimony of the 1942 degree of guilt hearing were unavailable at that time, and are presumed lost.*fn11 In support of his motion for a new trial, appellant argued only that the absence of a transcript of the 1942 guilty plea proceedings effectively denied him a meaningful direct appeal. It is from the denial of this motion that the instant appeal is taken.
[ 457 Pa. Page 7]
The right to meaningful appellate review must necessarily be determined in light of what appellant may raise on direct appeal. See Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 434 (1971); Mayer Page 7} v. Chicago, 404 U.S. 189, 199-200, 92 S. Ct. 410, 417 (1971) (Burger, C. J., concurring); Draper v. Washington, 372 U.S. 487, 495-96, 83 S. Ct. 774, 779 (1963); Commonwealth v. Jones, 450 Pa. 372, 301 A.2d 631 (1973); cf. Commonwealth v. DeSimone, 447 Pa. 380, 385, 290 A.2d 93, 96 (1972). Appellant pleaded guilty to murder generally and was adjudged guilty of murder in the first degree. Following a plea of guilty to an indictment charging murder and a verdict of murder in the first degree, the only issues cognizable on direct appeal are the validity of the plea, the lawfulness of the sentence, the jurisdiction of the trial court, the effectiveness of trial counsel, and the sufficiency and admissibility of the evidence introduced to raise the offense from murder generally to murder in the first degree.*fn12 Commonwealth v. Lofton, 448 Pa. 184, 292 A.2d 327 (1972); Commonwealth v. Butler, 446 Pa. 374, 288 A.2d 800 (1972); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971); Commonwealth v. Allen, 443 Pa. 447, 277 A.2d 818 (1971); Commonwealth v. Taylor, 439 Pa. 321, 266 A.2d 676 (1970); Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970).
This Court has determined in earlier PCHA proceedings that appellant's plea was voluntary and valid, that the trial court had jurisdiction, and that trial counsel was not ineffective. Commonwealth v. Hill,
[ 457 Pa. Page 8427]
Pa. 614, 235 A.2d 347 (1967). These issues may not be relitigated; our earlier holdings as to these issues are final and conclusive. Cf. Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 4(a) (3), 19 P.S. § 1180-4(a) (3) (Supp. 1973). That life imprisonment is a lawful sentence for murder in the first degree cannot successfully be challenged. Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701 (1963) (now 18 Pa. S. § 1102 (1973)).
In view of appellant's guilty plea and our decisions on his prior PCHA claims, the only issue now available to Hill is whether the evidence is sufficient to establish that the murder of Joseph Ramoska was murder in the first degree. The narrow question to be resolved, therefore, is whether the available record contains an equivalent picture of admissible evidence sufficient to raise appellant's plea of murder generally to murder in the first degree.
In Commonwealth v. Anderson, 441 Pa. 483, 493, 272 A.2d 877, 882 (1971),*fn13 this Court held that "while a transcript per se is not an absolute due process necessity, there must at least be an equivalent 'picture' of what transpired below."*fn14 Here, the 1942 transcript is missing. But, as the Supreme Court stated in
[ 457 Pa. Page 9]
is reflected in transcripts of counseled collateral proceedings, in opinions of the PCHA hearing court written with the aid of the 1942 transcript, in appellant's briefs in this Court, and in earlier opinions of this Court.
In Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967), upon examination of the record which at that time did not include the 1942 notes of testimony,*fn15 this Court stated, "Shortly after their arrest, all three men voluntarily confessed their guilt orally, and later in writing." Hill's counseled brief in this Court for that 1967 appeal states, "[A]ppellant . . . signed a written statement admitting his part in the felony murder charged in the indictment."*fn16 The attorney who in 1966 represented Hill at his first PCHA hearing used the 1942 transcript in preparing that case; he testified at appellant's 1972 hearing on remand that "on the merits of the degree of guilt, [the transcript] consisted of nothing more than the entry of the confession through the police officers who took the confession." The 1966 PCHA hearing judge, who also presided at the 1942 degree of guilt hearing, stated, "[T]hree written statements of each of the defendants were taken and offered in evidence without any objection."*fn17
Appellant now maintains that the "nature" of the evidence showing felony murder cannot be reconstructed without the 1942 transcript. To the contrary, its nature is abundantly clear. The existing record plainly establishes that appellant voluntarily confessed his participation in a felony murder; his confession was
[ 457 Pa. Page 11]
admitted without objection; the evidence of felony murder relied on by the court is contained in that confession. Counsel whose trial stewardship of this case was held in 1967 by this Court not to be ineffective, interposed no objection to the admission of appellant's confession. Consequently, the 1942 hearing court justifiably relied on the facts in that confession.
A properly-admitted confession of participation in a robbery resulting in murder is sufficient to sustain a verdict of murder in the first degree. See, e.g., Commonwealth v. Blanchard, 345 Pa. 289, 26 A.2d 303 (1942); Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906 (1937). Thus if the recitals in appellant's confession prove felony murder beyond a reasonable doubt, the 1942 judgment of sentence must be affirmed.
The contents of appellant's confession appear in the two PCHA opinions*fn18 of Judge Graff, who as previously noted also presided at appellant's 1942 degree of guilt hearing. Each opinion by Judge Graff contains a statement of the facts surrounding the Ramoska murder. These opinions, both consistent with each other, were written with the aid of the 1942 transcript, and are based on appellant's confession.
In the first opinion, filed on November 14, 1966, Judge Graff states: " From the evidence introduced at the time of the entering of the plea it appears that
[ 457 Pa. Page 12]
upon May 14, 1942, at approximately two o'clock in the morning, the defendant, together with one Elwood Marsh and one Charles Crawford, attended a carnival in Patton Township, this county. After leaving the carnival and coming to the Borough of Wilmerding, they assaulted and robbed a man named Vescely [sic]. This victim recognized Elwood Marsh. The three assailants left him, believing that he was dead. The Petitioner and his accomplices then walked down Patton Street Extension when they observed a man coming along the street whom they thought was drunk. Crawford strong-armed and beat this man, causing him to fall to the pavement, receiving an injury upon his head which fractured his skull and caused his death. The three men then picked up the victim, Ramoska, carried him to a vacant lot where they rifled his pockets and left him to die. The police were later informed about the two incidents and subsequently the three assailants were arrested. Based upon this testimony, all thee [sic] of the assailants were guilty of a felony murder and consequently murder of the first degree." Commonwealth v. Hill, No. 82 September Sessions 1942 at 1-2 (Pa. O. & T. Allegheny County, filed November 14, 1966) (emphasis added). These facts are reiterated in Judge Graff's second opinion, filed March 27, 1967.*fn19
[ 457 Pa. Page 13]
At no time during the almost eight intervening years since Judge Graff's opinions has appellant ever disputed the truth of these consistent statements of fact. Neither on this direct appeal nor on his appeals from the two prior PCHA hearings has Hill asserted that the facts establishing the felony murder of Ramoska are inaccurately reported. Indeed, appellant in his 1967 brief in this Court conceded that "most of the relevant facts appear in the [PCHA] transcripts that are available."*fn20 Similarly, appellant has not challenged this Court's statement in Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967), that "[a]ppellant and two other men, were arrested in connection with . . . the robbery and murder of Joseph Ramoska." Moreover, when Judge Graff at a 1957 habeas corpus hearing*fn21 recalled on the record that Hill was a co-defendant "in this murder case which was a killing committed in the perpetration of a robbery," neither appellant nor his counsel disagreed with the court's statement.
[ 457 Pa. Page 14]
We must conclude, therefore, that the available record "place[s] before [this] appellate court an equivalent report of the events at trial." Draper v. Washington, 372 U.S. 487, 495, 83 S. Ct. 774, 779 (1963). See also People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973). Review of the record evidence in the light most favorable to the Commonwealth satisfies us that the 1942 hearing court properly determined that all the elements of felony murder -- murder in the first degree -- were proved beyond a reasonable doubt. Commonwealth v. Yount, 455 Pa. 303, 320, 314 A.2d 242, 251 (1974); Commonwealth v. Lee, 450 Pa. 152, 154, 299 A.2d 640, 641 (1973).
Judgment of sentence affirmed.
Judgment of sentence affirmed.