Appeal from order of Court of Common Pleas of Fayette County, March T., 1964, No. 14/66, in case of Commonwealth ex rel. James E. Kern v. James F. Maroney, Superintendent.
James E. Kern, appellant, in propria persona.
Thomas P. Ruane, Jr., First Assistant District Attorney, and John R. Hoye, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.
While represented by competent counsel, appellant, James E. Kern, and his co-defendant, Robert Dillinger, plead guilty generally to an indictment charging them with the 1963 murder of Joseph S. Illig. During the hearing held in April 1964, to determine the degree of guilt, appellant testified as to his participation in the crime, but, contrary to a written statement he had previously given the police, denied striking the deceased. Following the hearing, appellant was found guilty of murder in the first degree and sentenced to life imprisonment, while Dillinger was found guilty of murder in the second degree. No post trial motions were filed nor was an appeal taken.
On May 16, 1966, a petition was filed in accord with the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1, seeking a remedy under this act in the nature of habeas corpus or in the alternative, a hearing to determine if the writ should issue. The court below dismissed the petition without a hearing on June 7, 1966. Thereafter the court also refused appellant permission to amend his petition. This appeal followed.
The petition before us consists solely of legal conclusions and is completely devoid of any factual account of the manner in which appellant's rights were violated. Moreover, in light of his guilty plea, which was equivalent to a conviction of murder in the second degree and constituted a waiver of all non-jurisdictional defects and defenses, Commonwealth ex rel. Davis v. Russell, 422 Pa. 223, 220 A.2d 858 (1966), all but two of his allegations are irrelevant. While appellant asserts that there was improper state action prior to the entry of his plea, he fails to indicate how, assuming the allegations are true, they prevented his plea from being a knowledgeable and voluntary act. See Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). In these circumstances, appellant is entitled to a collateral hearing, only if he alleges facts, which if true, would either vitiate his guilty plea or render unconstitutional the trial court's finding that the elements of first degree murder were present. See Commonwealth ex rel. West v. Myers, 423 Pa. 1, 3-5, 222 A.2d 918, 920-21 (1966); Commonwealth ex rel. Hilberry v. Maroney, 417 Pa. 534, 540, 207 A.2d 794, 797 (1965).
Appellant, however, was not entitled to a hearing on the basis of his bald assertion that his guilty plea was coerced. "When an accused pleads guilty to an indictment, it is presumed that he is aware of what he is doing. [Citations omitted.] Hence the burden of proving
otherwise is upon him." Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 85, 202 A.2d 299, 302 (1964), cert. denied, 379 U.S. 976, 85 S. Ct. 677 (1965). Although the preferable procedure would have been for the hearing judge to have determined for himself that the defendant's plea was knowingly and understandingly made, see, e.g., Commonwealth ex rel. Kerekes v. Maroney, supra at 342-3, 223 A.2d at 702; Commonwealth ex rel. Crosby v. Rundle, supra, we agree with the conclusion of the court below that the record in the instant ...