Carl G. Wass, Harrisburg, for appellant.
Edwin W. Frese, Jr., Deputy Dist. Atty., Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., filed a concurring opinion. Roberts, J., filed a dissenting opinion in which Nix and Manderino, JJ., join.
The appellant's prior direct appeal to this Court resulted in an affirmance of the judgment of sentence by an equally divided court. Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969). Appellant later sought post-conviction relief, but his petition was dismissed on
the ground that the issues sought to be raised had been "finally litigated" within the meaning of § 1180-4 of the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 4, 19 P.S. 1180-4. This appeal followed.
We are of the opinion that the former appeal did not constitute "final litigation" under the Post Conviction Hearing Act, supra. That Act defines an issue as "finally litigated" if "[t]he Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue." 19 P.S. 1180-4(a)(3). An even division of this Court results in affirmance of the order, judgment or decree appealed from because there is not a majority of the Court who favor reversing or modifying the action of the lower court. Thus the "'subject matter with which [the Supreme Court] is dealing must remain in statu quo'." Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A.2d 57, 58 (1971), quoting First Congressional District Election, 295 Pa. 1, 144 A. 735, 739 (1928). To leave a matter undisturbed or "in statu quo" because no majority can be mustered to do otherwise is not the same as ruling on the merits of the matter. The Supreme Court of the United States has ruled similarly with regard to the availability of federal habeas corpus following that Court's affirmance, by an equal division, of a state court's decision upholding the conviction of a defendant. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). While not controlling on us in the case at bar, the reasoning of the Court lends strong support to our present conclusion.
While we thus disagree with the reason which the trial court gave for dismissing the petition seeking collateral relief, we must nevertheless affirm its order. The Post Conviction Hearing Act is designed to give a defendant convicted of crime a final opportunity to vindicate his constitutional right to due process of law in
his conviction and sentence to the extent the questions raised have not been previously adjudicated or waived; it was not intended as an avenue to review ordinary rulings made during the conduct of the trial. See 19 P.S. § 1180-3(c)(12). The principal issue which appellant raised in his post-conviction petition and the sole issue presented on this appeal involves a ruling on evidence; it is not of constitutional dimension, and was not cognizable under the P.C.H.A. Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973); Commonwealth v. Gwyn, 449 Pa. 131, 295 A.2d 73 (1972); Commonwealth v. Smulek, 446 Pa. 277, 284 A.2d 763 (1971); Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Musser, 437 Pa. 131, 262 A.2d 678 (1970).