Appeal from order of Court of Common Pleas of Washington County, Nov. T., 1965, No. 240, in case of Commonwealth ex rel. Michael Kerekes v. James F. Maroney, Superintendent.
Michael Kerekes, appellant, in propria persona.
Arnold W. Hirsch, First Assistant District Attorney, and Harold V. Fergus, 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.
In December 1959, appellant was found near the body of his wife with a self-inflicted bullet wound in his left temple. Subsequently he was indicted for her murder and brought to trial.*fn1 Originally he pleaded not guilty, but shortly after the jury was sworn he requested, through his court appointed counsel, permission to withdraw this plea and "enter a plea of guilty to second degree murder." After ascertaining that the Commonwealth would not introduce evidence to prove that appellant was actually guilty of murder in the first degree, the court accepted the changed plea. When the Commonwealth had completed
its case, the defense rested. The court then found the appellant guilty and sentenced him to a term of imprisonment of ten to twenty years. No post trial motions were filed nor was an appeal taken.
Approximately five years later appellant filed a petition for a writ of habeas corpus in the Court of Common Pleas of Washington County attacking the validity of his plea. This appeal is from the denial, without a hearing, of that petition. We are of the view that the court below was correct and accordingly affirm its order.
One of the grounds alleged by appellant in support of his petition is that the trial court had no authority to accept a plea to "second degree murder." Because a defendant may not enter a guilty plea to murder in the first degree, the accepted practice in Pennsylvania if he desires to plead guilty, is for him to enter a guilty plea to murder generally. Commonwealth ex rel. Hobbs v. Russell, 420 Pa. 1, 2, 215 A.2d 858, 859 (1966); Commonwealth v. Samuel Jones, 355 Pa. 522, 525, 50 A.2d 317, 319 (1947); Commonwealth v. Iacobino, 319 Pa. 65, 67-68, 178 Atl. 823, 825 (1935). When properly made such a plea is sufficient of itself to sustain a conviction for murder in the second degree. Commonwealth ex rel. Davis v. Russell, 422 Pa. 223, 226, 220 A.2d 858, 859 (1966); Commonwealth v. Iacobino, supra. The burden is then on the Commonwealth to prove that the offense meets the requirements of murder in the first degree. Commonwealth ex rel. Andrews v. Russell, 420 Pa. 4, 6, 215 A.2d 857, 858 (1966); Commonwealth v. Chapman, 359 Pa. 164, 167, 58 A.2d 433, 434 (1948). Similarly if the defendant desires to reduce the crime to that of voluntary manslaughter, the burden is upon him to adduce evidence which will so mitigate the offense. Commonwealth v. Kirkland, 413 Pa. 48, 63, 195 A.2d 338, 345 (1963); Commonwealth v. Etzoola,
Luzerne L.R. 270 (1962); see Commonwealth v. Jordan, 407 Pa. 575, 588, 181 A.2d 310, 317 (1962); Commonwealth v. Carroll, 326 Pa. 135, 137, 191 Atl. 610, 611 (1937); Commonwealth v. Drum, 58 Pa. 9 (1868). Once a court accepts a plea of guilty to murder generally, it has the sole responsibility for fixing the degree of guilt and the penalty from the testimony produced and is not bound by any prior understanding between the Commonwealth and the defendant. Commonwealth ex rel. Hobbs v. Russell, supra; Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963); Commonwealth ex rel. Dandy v. Banmiller, 397 Pa. 312, 315-16, 155 A.2d 197, 199 (1959). Although contrary to proper procedure, we fail to see any prejudicial error in the court's acceptance of defendant's specific plea to murder in the second degree, provided the plea was knowingly entered. Compare ...