Opinion
June 28, 1971.
Criminal Law — Appeals — Waiver — Silent record — Plea of guilty to murder generally — Conviction of murder in the first degree — Defendant entitled as a matter of right to appellate review of the validity of the plea of guilty and the judgment of sentence — Every possible assignment of error raised in proceeding for post-conviction relief — Consideration of appeal from dismissal of petition as direct appeal.
1. Where neither the trial nor the post-conviction relief hearing records establish that a defendant who pleaded guilty to murder and was adjudged guilty of murder in the first degree knowingly waived his right to appeal from the judgment of sentence, he is entitled as a matter of right to appellate review of the validity of the plea of guilty and the judgment of sentence. [432]
2. Where defendant, in the court below and again before the appellate court on appeal from dismissal of his petition for post-conviction relief, raises and presents each and every assignment of error which could possibly be raised on a direct appeal, the appellate court may consider the appeal as a direct appeal from the judgment of sentence and study the record in this posture with each asserted assignment of error. [433]
Mr. Justice COHEN took no part in the decision of this case
Submitted December 2, 1970. Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 560, Jan. T., 1970, from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1949, Nos. 142 and 143, in case of Commonwealth of Pennsylvania v. Robert Gemberling. Judgments of sentence affirmed.
Petition for post-conviction relief. Before DOTY, J.
Petition dismissed. Petitioner appealed.
John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Mark Sendrow and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
On October 20, 1949, Robert Gemberling, while represented by four lawyers of recognized ability, entered general pleas of guilty to two charges of murder in Philadelphia. After an extensive hearing before a three-judge court, he was adjudged guilty of murder in the first degree in each case. On one conviction he was sentenced to life imprisonment, and on the other the sentence was suspended. No appeals were entered.
In February 1970, Gemberling instituted post-conviction relief proceedings which were dismissed after a counseled evidentiary hearing. This appeal is from that order.
Neither the trial nor the post-conviction relief hearing records establish that Gemberling knowingly waived his right to appeal from the judgments of sentence in 1949. Hence, even at this late date, he is still entitled as a matter of right to appellate review of the validity of the pleas of guilty and the judgments that followed. Cf. Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970). However, in the court below and again before this Court during this appeal, counsel, admittedly, has raised and presented each and every assignment of error which could possibly be raised on a direct appeal. Under the circumstances, we have decided to consider the present appeal as a direct appeal from the 1949 judgments and have studied the record in this posture with each asserted assignment of error.
The evidence presented to the trial court following the entry of the guilty pleas was more than sufficient to warrant the court in finding Gemberling guilty of murder in the first degree in each case. Further, the record fails to disclose any error in the plea proceedings which would now require declaring the guilty pleas invalid, or reversing the adjudications of guilt or sentences imposed. Hence, the judgments of sentence will be and are herewith affirmed.
Mr. Justice COHEN took no part in the decision of this case.