Appeal 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.
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.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
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).*fn1
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.*fn2 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.
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),*fn3 it does not assert waiver in its brief on appeal. Accordingly, we will thus treat the merits of appellant's contention.
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*fn4 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 ...