Appeal from order of Court of Oyer and Terminer of Philadelphia County, Sept. T., 1966, No. 103, in case of Commonwealth of Pennsylvania v. Willey Marshall.
Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
Michael J. Rotko 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.
Willey Marshall entered a plea of guilty to murder in October of 1961. After the Commonwealth's certification that Marshall's offense rose no higher than second degree murder, testimony was taken and a sentence of 8 to 20 years imposed. Marshall did not appeal but did in 1964 file a petition for a writ of habeas corpus. This Court affirmed without opinion the denial of his petition, see Commonwealth ex rel. Marshall v. Russell, 420 Pa. 639, 217 A.2d 738 (1966); appellant Marshall's subsequent habeas corpus action in federal district court was dismissed for failure to
exhaust state remedies, see United States ex rel. Marshall v. Russell, No. 767 H.C. (M.D. Pa. 1966).
Appellant returned to state court and on October 10, 1966 filed a second habeas corpus petition which the court below treated as a petition under the Post Conviction Hearing Act. Counsel was appointed and a hearing held. Marshall's sole contention was that, under the doctrine of Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967), an involuntary confession procured by the interrogating detectives primarily motivated the entry of his guilty plea. The post-conviction hearing judge concluded that the confession "was the product of . . . [Marshall's] rational intellect and free will" and that the guilty plea was entered after court appointed counsel had fully advised their client as to the nature and consequences of his act. Both of these findings are now attacked.
At his hearing Marshall testified that he was beaten by the arresting officers and that he was later threatened with additional violence. Appellant stated that he had been drinking and that he signed the statement (which he was unable to read because he did not have his glasses) to avoid any further beatings. One of the two detectives involved in the interrogation testified that at no time did he strike or threaten Marshall and that he did not observe anyone else do so. Although this detective admitted that he was not at all times in Marshall's presence, he insisted that there was no visible indication that Marshall had in any way been harmed.
As to the motivation for his plea, appellant insisted that trial counsel informed him that, given the existence of Marshall's statement, the only course was a guilty plea. Both trial counsel testified and denied that they in any way foreclosed other available alternatives. Appellant, according to trial counsel, was
advised of the possible sentences which could be imposed and that one Pop Johnson was going to testify that he observed Marshall strike the decedent with an axe. Trial counsel indicated that they recommended entry of a plea based upon this eyewitness testimony (as well as a trial of blood leading from Marshall's apartment to the decedent's body which was found by police one-half block away) and that they made this evaluation without regard ...