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decided: November 12, 1985.


Appeal from Order Entered June 11, 1985 in Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 681 C of 1980. No. 42 Western District Appeal Docket, 1985.


Rabe F. Marsh, III (court-appointed), Greensburg, Welsh S. White, Pittsburgh, for appellant.

John J. Driscoll, Dist. Atty., John W. Peck, Greensburg, for appellee.

Hutchinson, Justice. Nix, C.j., and Larsen, McDermott, Zappala and Papadakos, JJ. Papadakos, J., files a concurring opinion in which McDermott, J., joins. Flaherty, J., did not participate in the consideration or decision of this case.

Author: Hutchinson

[ 509 Pa. Page 70]


John Charles Lesko, appellant, appealed to us a Westmoreland County Common Pleas order denying his petition for post-conviction relief from that court's death sentence without a hearing. After filing his appeal in this Court, he asked us to transfer the record to Superior Court, claiming that we lacked initial appellate jurisdiction over post-conviction appeals in capital cases. On the merits, asserting breach of a plea bargain, he contends Westmoreland County Common Pleas erred in holding that his right to withdraw his guilty plea to a related murder had been finally determined against him by us in Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1982), on direct appeal from the Court of Common Pleas of Indiana County, the court with initial jurisdiction over that related murder. He also contends that he has been denied adequate appellate review on the proportionality of his sentence and that the trial judge's

[ 509 Pa. Page 71]

    instructions to the Westmoreland County sentencing jury not to be swayed by sympathy for either his victim or appellant himself violated the requirement of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1977), that an "individualized decision is essential in capital cases" because "the uniqueness of the individual is far more important than in non-capital cases." 438 U.S. 586, 605, 98 S.Ct. 2954, 2965.

We now hold that under the present version of our Post-Conviction Hearing Act, Act of May 13, 1982, P.L. 417, 42 Pa.C.S. § 9541-9551, appeals of Common Pleas decisions are within Superior Court's jurisdiction, and that this method of appeal is not in conflict with either Section 722 of the Judicial Code, 42 Pa.C.S. § 722, relating to our jurisdiction on direct appeals from Common Pleas, or Section 9711(h) of the Sentencing Code, 42 Pa.C.S. § 9711(h), relating to our automatic review of death sentences. Nevertheless, because of the uncertainty surrounding this jurisdictional issue of first impression, its importance in the administration of our death penalty act and the uncertainties further delay would impose in this case, we will accept appellant's appeal and, instead of transferring it to Superior Court pursuant to 42 Pa.C.S. § 5103(a), retain jurisdiction here under 42 Pa.C.S. § 726. Since we have already decided all the issues raised in this collateral proceeding against appellant in either his direct appeal from his Westmoreland County conviction and sentence*fn1 or his appeal from the Indiana County Common Pleas' denial of his petition to withdraw his guilty plea to the murder of William Nicholls,*fn2 and no extraordinary circumstances have been averred or found by us, the issues appellant raises on this appeal are unavailable to him as grounds for post-conviction relief under Section 9544 of the Post-Conviction Hearing Act, 42 Pa.C.S. § 9544. We therefore rule against him on the

[ 509 Pa. Page 72]

    merits. Having so ruled, and having thoroughly reviewed all aspects of the record relating to his conviction and sentence in his direct appeals, we affirm Common Pleas.

After a Westmoreland County jury found appellant guilty of murder in the first degree in the ambush killing of police officer Leonard Miller, the Commonwealth called the District Attorney of Indiana County as a witness in the sentencing phase to show that appellant had entered a guilty plea to second degree murder in Indiana County Common Pleas to the killing of William Nicholls in that county after Nicholls had been abducted and robbed. This testimony was presented to establish one of the aggravating circumstances which our death penalty statute permits a jury to consider in deciding whether a person which it has found guilty of first degree murder should be sentenced to death or life imprisonment. The particular aggravating circumstance as to which appellant's Indiana County plea was relevant is Section 9711(d)(10) of the Sentencing Code, 42 Pa.C.S. § 9711(d)(10), a conviction of "another . . . offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable . . . ." Murder in the second degree, felony murder, here based on the robbery of Nicholls, is a crime for which a sentence of life imprisonment is mandatory. Section 1102 of the Crimes Code, 18 Pa.C.S. § 1102. The record in the guilt phase of appellant's trial for the killing of Miller in Westmoreland County shows, independently of the testimony of the Indiana District Attorney and the records he identified at the sentencing phase, that appellant and others had abducted Nicholls in Nicholls's own car in Allegheny County and forced him to drive with them out of town, after appellant's Westmoreland County co-defendant, Michael Travaglia, had shot Nicholls in the arm. Abusing Nicholls along the way, they went to a lake in Indiana County, where they bound and gagged Nicholls and weighted him with rocks. So trussed and weighted, they carried him to the lake, broke the ice on it and threw him into water over his head. Still in Nicholls's car, with his belongings

[ 509 Pa. Page 73]

    and a gun which connected them to another killing which occurred within a week of the killings of Nicholls and Miller and to a series of robberies of convenience stores in Indiana and Westmoreland Counties within the same time frame, appellant and his accomplice encountered Officer Miller, enticed him into a chase, pulled over and killed him as he approached their stopped vehicle.

This Court provided appellant with the automatic review which the law requires of us in capital cases in his direct appeal from his conviction and death sentence in the killing of Officer Miller. That review is mandatory under Section 9711(h) of the Sentencing Code, 42 Pa.C.S. § 9711(h).*fn3

The jurisdictional basis for the automatic review required by Section 9711(h) of the Sentencing Code is provided by Section 722(4) of the Judicial Code, 42 Pa.C.S. § 722(4). Section 722 gives this Court "exclusive jurisdiction of appeals from final orders of the courts of common pleas" in certain specified classes of cases. Subsection (4) includes in those classes "[a]utomatic review of sentences as provided by 42 Pa.C.S. § 9711(h) (relating to review of death sentence)."

Prior to the Act of September 23, 1980, P.L. 686, No. 137, § 1, effective November 22, 1980 (Act 137 of 1980), Section 722 of the Judicial Code included among the classes of cases

[ 509 Pa. Page 74]

    within our exclusive jurisdiction, under the former version of its subsection (1), "Felonious homicide."

In Commonwealth v. Fauntroy, 475 Pa. 287, 380 A.2d 357 (1977), we had interpreted Section 202 of our repealed Appellate Court Jurisdiction Act,*fn4 which was identical in language with the former version of Section 722(1) of the Judicial Code, as giving us exclusive jurisdiction not only of direct appeals in cases of felonious homicide, but also of appeals in post-conviction proceedings concerning them.

However, Section 722(1) of the Judicial Code now grants us exclusive jurisdiction only over "matters prescribed by general rule." Judicial power over collateral post-conviction review of criminal proceedings was specifically granted by the legislature under the Act of December 20, 1982, P.L. 1409, No. 326, Art. II, § 201, effective February 18, 1983; 42 Pa.C.S. § 9501. It provides:

§ 9501. Procedures, motions and other matters.

Except as otherwise provided by this chapter all post-trial procedures, motions and other matters relating to any criminal proceeding shall be conducted in the manner, at the times, on the terms and conditions and in the form prescribed by general rules.

Rules implementing this statute have been adopted as Chapter 1500 of our Rules of Criminal Procedure, Pa.R.Crim.P. 1501-1507. Rule 1507 expressly suspends the Post-Conviction Hearing Act of 1982, 42 Pa.C.S. § 9541-9551, insofar as it is inconsistent with the rules. Neither the rules themselves nor the 1982 Post-Conviction Hearing Act expressly provide for appellate jurisdiction.

However, Section 742 of the Judicial Code, 42 Pa.C.S. § 742, relating to appeals from courts of common pleas in cases not entrusted to us provides:

§ 742. Appeals from courts of common pleas.

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of

[ 509 Pa. Page 75]

    common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

Act No. 137 of 1980, which amended Section 722 of the Judicial Code into its present form, had as a prime purpose relieving this Court of the burden of dealing with all appeals in cases of felonious homicide, including the repeated appeals such cases often generated under the Post-Conviction Hearing Act and converted this Court into one with primarily discretionary appellate jurisdiction. It had as its prime mover former Chief Justice Michael Eagan, who labored intensely in educating the bar, the public and the legislature on the adverse effect the burden of often frivolous appeals and reappeals was having on our ability to discharge our administrative and supervisory powers as governing authority of the unified judicial system, along with our rule making function and our prime judicial duty of clearly and carefully delineating the law of this Commonwealth in areas of general import in which its meaning or application was in dispute. Recognizing the increased burden the removal of these and other matters from our jurisdiction would have on Superior Court, the legislature had passed the Act of June 11, 1980, P.L. 213, No. 63, 42 Pa.C.S. § 541, increasing the size of Superior Court from seven to fifteen members. In Act 137, the legislature was also careful to rewrite Section 722(4) of the Judicial Code to insure by explicit requirement that an automatic, searching and independent review of all death sentences would be available in this Court on a mandatory basis, in accordance with Section 9711(h) of the Sentencing Code. As stated, this appellant has had such a review.

For us to conclude that either this appellant, others sentenced to death or the Commonwealth itself have a right to appeal to us final orders of the courts of common pleas in collateral attacks on death sentences by post-conviction proceedings would not, to our mind, further the legislative

[ 509 Pa. Page 76]

    purpose in passing the 1980 amendments to both the Judicial Code and the Post-Conviction Hearing Act. The development of any issues appropriately raised on collateral attack is, we believe, better left to the normal appellate process under Section 742 of the Judicial Code. In that manner, attempts to relitigate questions we have already decided can be screened and new or unseen issues not finally litigated or waived fully explored. When such new issues arise, which should rarely occur because of the broad and searching review we make on direct appeal, they can be considered in this Court on petition of either party, addressed to our discretionary jurisdiction under Section 724 of the Judicial Code. Thus, any significant issue of statewide import can be fully considered here on a discretionary basis. The remedies available under the Post-Conviction Hearing Act are derivative of those available under the ancient writ of habeas corpus. That writ was always available in the lower courts. We therefore see no anomaly in permitting them to consider, in the first instance, whether collateral relief is available under Section 9543 of the Post-Conviction Hearing Act, 42 Pa.C.S. § 9543.*fn5 Those few capital cases which involve issues which we have not considered and which, therefore, remain open under the Act, are subject to the normal process of full appellate review in Superior Court and discretionary review here.

Considering the legislative history and purpose behind Act No. 137 of 1980, which included the amendment to Section 722 of the Judicial Code deleting the category of felonious homicides from our exclusive appellate jurisdiction, and the fact that we have not utilized the present version of § 722(1) to adopt a general rule providing for our exclusive jurisdiction in collateral attacks on death sentences, we conclude that they are not normally within it, but instead encompassed within the appellate ...

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