COMMONWEALTH v. MILLIKEN, 456 Pa. 527 (1974)

321 A.2d 652

Commonwealth v. Milliken, Appellant.

Supreme Court of Pennsylvania.Submitted May 20, 1974
Decided July 1, 1974

Criminal Law — Practice — Post-conviction proceedings — Issues “finally litigated”.

1. The Post Conviction Hearing Act is not a vehicle for the relitigation of previously-adjudicated claims.

Page 528

2. It was Held that an issue raised and disposed of on direct appeal is “finally litigated” and will not be reconsidered in a post-conviction proceeding.

Before JONES, C. J., EAGEN, O’BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

Appeal, No. 43, May T., 1974, from order of Court of Common Pleas of Dauphin County, Sept. T., 1968, No. 14, in case of Commonwealth of Pennsylvania v. Thomas Eugene Milliken. Order affirmed.

Petition for post-conviction relief.

Petition dismissed, opinion by LIPSITT, J. Petitioner appealed.

Philip D. Freedman, Assistant Public Defender, for appellant.

Rolf W. Bienk, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

OPINION BY MR. JUSTICE ROBERTS, July 1, 1974:

On direct appeal from his conviction of murder in the first degree, appellant argued that a warrant authorizing the search of his apartment was unconstitutionally issued because sworn oral testimony was used to supplement the written affidavit. This Court rejected his claim and affirmed the judgment of sentence. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78
(1973). See also United States ex rel. Gaugler v. Brierley, 477 F.2d 516 (3d Cir. 1973); Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Commonwealth v. Bedford, 451 Pa. 325, 304 A.2d 453 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973).

In this post-conviction proceeding, Milliken again raises the identical issue. By virtue of our previous adjudication, this issue is finally litigated. Post Conviction

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Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 4(a)(3), 19 P. S. § 1180-4(a)(3) (Supp. 1973); see, e.g. Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974). The hearing court therefore correctly refused to reconsider this issue and properly dismissed the petition. The Post Conviction Hearing Act is not a vehicle for the relitigation of previously-adjudicated claims.

Order affirmed.