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decided: January 3, 1968.


Appeal from order of Court of Oyer and Terminer of Philadelphia County, Oct. T., 1957, No. 793, in case of Commonwealth of Pennsylvania v. James Allen.


James Allen, appellant, in propria persona.

Burton D. Fretz and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, 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.

Author: Roberts

[ 428 Pa. Page 114]

In this, appellant's second state post-conviction action,*fn1 he alleges that his privilege against self-incrimination

[ 428 Pa. Page 115]

    was violated, that his two court-appointed attorneys were not competent, that a constitutional right not recognized at the time of trial but applicable retroactively was violated and that his plea of guilty was unlawfully induced. Counsel was appointed and a hearing conducted. Giving appellant's petition the most charitable reading, there are no facts alleged which in legal contemplation are sufficient to support the first three of his four allegations.*fn2 Furthermore, only the last allegation was pressed at the hearing below and apparently forms the primary basis for this appeal.

Appellant testified at the hearing below that his involuntary plea resulted from a combination of circumstances.

[ 428 Pa. Page 116]

According to appellant, his attorneys early adopted a fixed view that the likelihood of a death sentence made a plea the only realistic alternative given the substantial evidence of appellant's participation in a grievous felony-murder. Believing himself not guilty, appellant approximately five months prior to trial wrote to the Attorney General indicating that he was dissatisfied with counsel's evaluation and requesting advice on available methods to compel counsel to withdraw. The Attorney General replied that this matter was not within his purview and that appellant should notify the trial court of his views when brought to trial.*fn3 Accordingly, appellant made no mention of this correspondence until trial day when he asked the court to appoint two new attorneys and continue his trial. After a noon recess, appellant's request was denied*fn4 and he entered a plea of guilty. Appellant now contends that trial counsel's fixed intention to compel appellant to plead guilty combined with the trial court's refusal to appoint new counsel placed him in the position of entering a plea of guilty or facing trial unrepresented and that his choice of the lesser of these two evils, i.e., entry of a plea with counsel, indicates that his plea was not voluntary.

In all material particulars, appellant's version was contradicted by the testimony of both trial counsel.

[ 428 Pa. Page 117]

Not only did they insist that the ultimate decision to enter a plea always rested with appellant and that they explained in detail all of the available alternatives including possible sentences, but both specifically stated that appellant was informed that counsel was willing to try appellant's case before a jury if such was appellant's wish. Furthermore, one attorney testified that during the noon recess appellant apologized for his request that new counsel be appointed, explaining his request in light of advice given to him by a fellow inmate that a request for new counsel would result in a postponement of the trial. The other attorney corroborated this incident and related that during the course of the degree of guilt proceeding appellant commented that he was satisfied with his representation and would recommend trial counsel for further business. Although, regrettably, the trial record contains no examination of appellant as to the consequences of his decision to plead guilty, the post-conviction hearing judge chose to believe trial counsel and appellant has therefore failed to meet his burden of demonstrating that his plea was involuntary. See Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968); Commonwealth v. Grays, 428 Pa. 109, 237 A.2d 198 (1968).*fn5

Order affirmed.


Order affirmed.

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