No. 85 January Term, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, denying Appellant's Petition under the Post Conviction Hearing Act, without hearing, under Bill of Indictment Numbers 1331, 1333, July Term, 1970.
Lee Mandell, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a concurring opinion in which O'Brien, C. J., joins.
Appellant, Gregory McNeal, was convicted by a jury of murder of the first degree, rape, and conspiracy.*fn1 That conviction was affirmed by this Court. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974). Appellant then filed a petition under the Post Conviction Hearing Act, alleging ineffective assistance of counsel on various theories. On appeal to this Court from denial of that petition, these allegations were all held to be without merit. Commonwealth v. McNeal, 479 Pa. 112, 387 A.2d 860 (1978). Appellant then filed a second P.C.H.A. petition which was denied without a hearing and this appeal followed. We affirm.
Appellant apparently alleges (1) that trial, direct appeal and first P.C.H.A. counsel were ineffective for failing to preserve for review the issue of whether a demurrer to the Commonwealth's evidence should have been sustained at trial, and (2) that the trial court erred in denying the demurrer to the charges of conspiracy, rape and murder.
The correctness of a ruling denying appellant's demurrer is not an appropriate issue for appellate review where appellant did not rest following the adverse ruling but elected to present evidence in his defense. Commonwealth v. Warren, 475 Pa. 31, 379 A.2d 561 (1977). However, when there is an improper challenge to the trial court's ruling on the demurrer, this Court may treat the question as if properly framed, namely, whether the trial court erred in refusing appellant's motion in arrest of judgment -- whether the evidence was sufficient in law to support appellant's conviction. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). If we treat the question as one of sufficiency of the evidence, however, that issue has been finally litigated on direct appeal, where we stated:
After studying the record, we are completely satisfied the proof was ample for the jury to find that McNeal and others conspired to rape the victim involved, and that the killing was committed in the furtherance of this conspiracy. We also have no doubt the jury was also warranted in finding McNeal had not withdrawn from the conspiracy before the killing occurred. Hence, the jury had the right to apply the felony-murder doctrine and return a verdict of guilty of murder in the first degree.
456 Pa. at 397, 319 A.2d at 672. The lower court correctly ruled that the issue of sufficiency of the evidence was finally litigated under 19 P.S. § ...