No. 426 January Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Trial Division of Philadelphia, at Nos. 1163-1166 February Term, 1973.
Donald S. Bronstein, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty, J., files an Opinion in Support of Affirmance in which Larsen and Kauffman, JJ., join. O'Brien, C. J., files an Opinion in Support of Reversal in which Roberts and Nix, JJ., join.
The Court being equally divided the Order of the Court of Common Pleas is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant Johnny James was convicted of murder of the first degree, aggravated robbery and conspiracy on November 28, 1973. Judgment of sentence was imposed and we affirmed the conviction by an equally divided Court. James now appeals from an order of the Court of Common Pleas of Philadelphia County denying his petition for post-conviction relief. For the following reasons we would affirm.
Although appellant raises four issues in his appeal,*fn1 each is based on his primary claim that the trial court erred in
failing to suppress his confession as the result of an unnecessary delay between arrest and arraignment. This primary claim has been raised at every stage in the proceedings, and so is not waived. It is however, finally litigated. When we affirmed the judgment of sentence on direct appeal, the claim that is now raised was finally litigated, and is not available, therefore, to appellant at the post-conviction stage.*fn2
Although it may be true that when a judgment of sentence is affirmed by an equally divided court there has been no adjudication that would be binding on others, the adjudication is certainly binding on appellant. In other words, while there has been no precedent established in an affirmance by an equally divided court, there has been a decision as the the appellant in the case decided. This is tantamount to a decision on the merits of appellant's claim. We would overrule Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976), insofar as it holds to the contrary, and we would deny the instant appeal on the grounds that the question presented has been finally litigated*fn3 on direct appeal.*fn4
Rather, our view is better reflected in a dissenting opinion by Judge Mulligan in United States ex rel. Radich v. Criminal Court of the City of New York, 459 F.2d 745, 753 (2d Cir. 1972) citing the United States Supreme Court in Hertz v. Woodman, 218 U.S. 205, 213-214, 30 S.Ct. 621, 622-623, 54 L.Ed. 1001 (1910):
Under the precedents of this court, and, as seems justified by reason as well as by authority, an affirmance by an equally divided court is, as between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases either in this or in inferior courts.
OPINION IN SUPPORT OF REMAND
This is an appeal from an order entered in the Court of Common Pleas of Philadelphia on September 25, 1979, denying appellant's petition for post-conviction relief.
Appellant, Johnny James, was on November 28, 1973, convicted by a jury of murder of the first degree, aggravated robbery and conspiracy. On March 12, 1974, post-verdict motions for new trial and in arrest of judgment were denied. Appellant was sentenced to life imprisonment on the murder conviction, ten-to-twenty years imprisonment on the aggravated robbery conviction and two years imprisonment on the conspiracy conviction. The sentences imposed on the lesser offenses were to run consecutively with one another and concurrently with that imposed on the murder conviction. Represented by new counsel, an appeal was taken to this court. On April 28, 1977, an equally divided court affirmed the judgment of sentence. Commonwealth v. James, 470 Pa. 217, 368 A.2d 271 (1977).
On April 28, 1978, appellant, represented by new counsel, filed a petition under the Post-Conviction Hearing Act, 19 P.S. §§ 1180-1, et seq. Following a hearing the trial court denied appellant's prayer for ...