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COMMONWEALTH PENNSYLVANIA v. ARTHUR MCCONNELL ET AL. (TWO CASES). APPEAL DONALD R. HOSACK AND GARY LEE BATLEY (01/28/77)

decided: January 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ARTHUR MCCONNELL ET AL. (TWO CASES). APPEAL OF DONALD R. HOSACK AND GARY LEE BATLEY



COUNSEL

Charles S. Hersh (Court Appointed), Charles F. Gilchrest, Sharon, for appellants.

Robert F. Banks, Asst. Dist. Atty., David B. Douds, Mercer, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Manderino

[ 470 Pa. Page 314]

OPINION OF THE COURT

The appellants, Gary Lee Batley and Donald R. Hosack, along with Kenneth Perrine and Arthur McConnell were convicted of murder and sentenced to life imprisonment in September of 1968. Following the imposition of these sentences, the appellants and Perrine and McConnell sought review by this Court either on direct appeal or by Post Conviction Hearing Act (PCHA) petitions. See Commonwealth v. Batley, 436 Pa. 377, 260 A.2d 793 (1970); Commonwealth v. McConnell, 449 Pa. 68, 295 A.2d 336 (1972); Commonwealth v. Perrine, 445 Pa. 607, 284 A.2d 312 (1971); and Commonwealth v. Hosack, 459 Pa. 27, 326 A.2d 352 (1974).

In 1974, Batley, Hosack and McConnell filed identical petitions for Writs of Coram Nobis in the Court of Common Pleas of Mercer County, alleging that their sentences of life imprisonment for first degree murder were unconstitutional and violative of the equal protection clause of the Fourteenth Amendment and the due process clauses of the Fifth and Fourteenth Amendments. Appellants contend that it was not constitutionally permissible for a court to forego the imposition of a minimum sentence, the effect of which was to deny those sentenced to life imprisonment any eligibility for release from prison on parole.

The petitions were heard and relief was denied on all petitions. The cases at bar involve the appeals of only Batley and Hosack.

The trial court properly treated the petitions for Writs of Coram Nobis as petitions under the Post Conviction Hearing Act. See Commonwealth v. Sheehan,

[ 470 Pa. Page 315446]

Pa. 35, 285 A.2d 465 (1971); Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. ยง 1180-1 et seq. The petitioners' rights are thus to be determined under the Post Conviction Hearing Act including Section 4(b)(1) and (2) which provide:

"For the purposes of this act, an issue is waived if:

(1) the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in ...


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