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November 27, 1963


Appeal, No. 164, March T., 1963, from judgment of Court of Oyer and Terminer of Allegheny County, Nov. T., 1962, No. 68, in case of Commonwealth of Pennsylvania v. Catherine Kirkland. Judgment affirmed.


Albert Martin, with him Joseph C. Recht, for appellant.

William Claney Smith, Assistant District Attorney, with him George H. Ross, Assistant District Attorney, and Edward C. Boyle, District Attorney, for Commonwealth, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 413 Pa. Page 50]


Defendant-appellant (Catherine Kirkland) was tried upon an indictment containing two counts: (1) murder and (2) voluntary manslaughter. Following her general plea of guilty, the case was heard by Judge MCKENNA without a jury. He found her guilty of murder in the second degree and sentenced her to imprisonment for not less than four and not more than eight years. This appeal followed. Only two questions

[ 413 Pa. Page 51]

    are raised, but both of them are very important.

Before the trial, the assistant district attorney informed counsel for defendant that in his opinion the evidence would not warrant a verdict of murder but only a verdict of voluntary manslaughter. He also informed her counsel that if defendant pleaded guilty to the indictment generally, he would recommend to the Court, upon the conclusion of the presentation of the Commonwealth's evidence, a dismissal of the murder count and an imposition of sentence only on the count of voluntary manslaughter.

All the attorneys then conferred with Judge MCKENNA. When informed by the assistant district attorney of the recommendations he planned to make at the conclusion of the Commonwealth's evidence, provided the appellant pleaded guilty to the indictment generally, Judge MCKENNA told them that until he had heard the Commonwealth's evidence, he would not make any commitment as to the degree of guilt which would be found. According to the brief of the defendant's experienced counsel, Judge MCKENNA said, "He respected the opinion of Mr. Ross but on a plea of guilty generally to the indictment, he would base his verdict on the testimony produced in the case."

When defendant was thereafter arraigned, her counsel advised the Court that she desired to plead guilty generally to the indictment. The Court thereupon catechized defendant to make certain that she clearly understood the gravity, the effect and the consequences of this plea. After the Court was satisfied that defendant - not only through advice of her counsel but also - personally understood the effect and possible consequences of what she was doing in pleading guilty, her plea of guilty was accepted and recorded.

After almost all of the Commonwealth's evidence had been presented, Judge MCKENNA informed counsel for both sides that he believed from the evidence

[ 413 Pa. Page 52]

    thus far heard that defendant's crime was second degree murder. The assistant district attorney expressed disagreement and respectfully repeated his opinion that the evidence would not support a finding of guilt other than of voluntary manslaughter. Defendant then asked leave to withdraw her general plea of guilty, so that the issue of the degree of her guilt could be submitted to the jury. The Court refused the application or motion.

At the conclusion of the Commonwealth's case the assistant district attorney again repeated the recommendation which he had promised to make, and the Court again declined to allow defendant to withdraw her plea of guilty.

Defendant now contends that by reason of such refusal by the Court, she has been deprived of her Constitutional right to a trial by jury. We shall discuss not only her Constitutional rights but also her statutory right to withdraw her plea under the Act of April 15, 1907, P.L. 62, as amended by the Act of June 15, 1939, P.L. 400, 19 P.S. ยง 241.

Defendant contends that it was an abuse of discretion for Judge MCKENNA to refuse to permit her to withdraw her guilty plea after hearing most of the Commonwealth's evidence; and that "This constitutional right [to a trial by jury] was [mistakenly] waived by the appellant on the advice of her counsel." Defendant's counsel were competent lawyers, experienced in the trial of homicide cases. The basis for this contention of "mistake" is that she relied on the advice of her counsel that:

"(a) The Court would determine her guilt under the law and all the evidence.

"(b) The district attorney would recommend a finding of voluntary manslaughter.

"(c) The Court ordinarily followed such recommendation, and

[ 413 Pa. Page 53]

"(d) Leniency was ordinarily extended to individuals of her age, extreme poor physical condition, and previous good character and reputation."

The Constitution of the United States provides, in Article III, Section 2(3), "The Trial of all Crimes, except in Cases of ...

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