Opinion
January 11, 1968.
March 15, 1968.
Criminal law — Murder — Constitutional law — Plea of guilty motivated by prior confession — Collateral attack on plea — Post Conviction Hearing Act.
In this Post Conviction Hearing Act proceeding in which it appeared that defendant (serving a sentence for second degree murder) contended that his plea of guilty was primarily motivated by the existence of an involuntary confession but the court below, after hearing, found to the contrary, it was Held that the order dismissing the petition should be affirmed.
Argued January 11, 1968. Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 396, Jan. T., 1967, from order of Court of Oyer and Terminer of Philadelphia County, July T., 1962, Nos. 171 and 173, in case of Commonwealth of Pennsylvania v. Robert R. Davis. Order affirmed.
Proceeding under Post Conviction Hearing Act.
Petition denied after hearing before HAGAN, P. J. Defendant appealed.
John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
Benjamin A. Levintow, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
On January 24, 1963, appellant Davis entered a plea of guilty to murder generally in Philadelphia County Court of Oyer and Terminer. The Commonwealth thereupon certified that the offense rose no higher than second degree. Davis was sentenced to 12 1/2 to 30 years; no appeal was taken. In 1965 he filed a habeas corpus petition which was denied (after a hearing had been held) and that denial affirmed by this Court without written opinion. See Commonwealth ex rel. Davis v. Myers, 420 Pa. 634, 217 A.2d 740 (1966). Appellant next sought relief in the federal court and was again rebuffed after a full evidentiary hearing. See United States ex rel. Davis v. Rundle, Misc. No. 3253 (E.D. Pa. 1966).
In both his federal and state habeas corpus petitions Davis contended that he was arrested without a warrant, that he was denied the assistance of counsel during interrogation by police and that he was not represented by counsel at his preliminary hearing.
Appellant now appeals from the denial of his 1967 Post Conviction Hearing Act petition. The court below held an evidentiary hearing during which the only issue pressed was that appellant's guilty plea was primarily motivated by the existence of an involuntary confession. See Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967); see also Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968). The denial below must be affirmed.
Davis' post-conviction application asserted the following: (1) admission at trial of a statement procured in the absence of counsel at a time when such representation was constitutionally required; (2) infringement of the privilege against self-incrimination; (3) an unlawfully induced guilty plea; (4) use of perjured testimony and (5) abridgement of a constitutional right not recognized at the time of trial. Although some mention was made at the post-conviction hearing of a coroner's report which allegedly contained hearsay, no facts were developed to support this contention.
Although at the post-conviction hearing the Commonwealth contended that Davis' claim was waived under § 4 of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P. S. § 1180-4 (Supp. 1966), it does not assert waiver in its brief on appeal. Accordingly, we will thus treat the merits of appellant's contention.
Appellant strenuously insists that the rebuttable presumption created in subsection (c) of § 4 that failure to raise an issue in a prior proceeding is a knowing and understanding failure is unconstitutional. The bulk of his brief is devoted to this issue.
Davis insists that the disputed confession was procured while he was intoxicated and thus it was involuntary. As is all too often the case, the trial record contains no examination as to the voluntariness of the plea. See Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). The post-conviction hearing judge made no factual finding as to voluntariness but rather rested his decision upon a finding that Davis' plea was the product of trial strategy, i.e., a plea bargain was made after which the Commonwealth certified that the offense did not rise higher than second degree murder. We have read the records of Davis' post-conviction hearing, his federal habeas corpus hearing and his trial (as did the post-conviction court below) and see no reason to disturb the conclusion of the post-conviction hearing court that the guilty plea was not the product of an involuntary confession. See Commonwealth v. McCauley, 428 Pa. 107, 237 A.2d 204 (1968); Commonwealth v. Garrett, supra.
We have expressly upheld the validity of guilty pleas entered on the basis of a plea bargain. See Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966).
Order affirmed.