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decided: May 21, 1968.


Appeal from order of Court of Oyer and Terminer and Quarter Sessions of Allegheny County, Dec. T., 1964, No. 62, in case of Commonwealth of Pennsylvania v. Oscar Robinson.


John P. McComb, Jr., Charles R. Taylor, Jr., and Moorhead & Knox, for appellant.

Charles B. Watkins and Carol Mary Los, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Jones dissent. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 430 Pa. Page 190]

Oscar Robinson entered a guilty plea to a charge of murder. His February 15, 1965 guilty plea and degree of guilt hearing resulted in a verdict of murder in the second degree and a prison term of 7 to 15 years. This appeal is taken from the denial without hearing of his first Post Conviction Hearing Act petition.

In a commendably frank brief, the Commonwealth concedes that two statements obtained from appellant Robinson and introduced at his degree of guilt hearing were obtained under circumstances violative of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), a decision applicable to appellant. See Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966). However, we recently held in Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968) that evidentiary use of a statement violative of Escobedo can be deemed constitutionally harmless if this Court is satisfied that the error "was harmless beyond a reasonable doubt." See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967). Since appellant entered a plea of guilty to second degree murder and the Commonwealth was unsuccessful in its attempt to raise the degree of appellant's guilt, it follows that evidentiary use of the two statements was constitutionally harmless error.

Yet this does not terminate our inquiry for appellant also contends that the existence of the tainted confessions prompted entry of the plea itself and that he should therefore be entitled to withdraw his plea. The Commonwealth correctly recognizes that appellant is attempting to place himself under the doctrine first

[ 430 Pa. Page 191]

    enunciated in Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967). We there held that a guilty plea could be collaterally attacked if the post-conviction applicant could prove that his plea was primarily motivated by the existence of a constitutionally infirm confession. Although the Commonwealth contends that Garrett is limited to allegations that the underlying constitutional infirmity motivating the plea was a coerced confession, we do not believe that Garrett can be so confined. Not only in post- Garrett cases have we spoken in broader terms such as the presence of allegedly "constitutionally infirm evidence," see Commonwealth v. Marshall, 429 Pa. 305, 308, 239 A.2d 313, 314 (1968), but the rationale of Garrett itself does not support the Commonwealth's reading of that decision. As is evident from that opinion and its emphasis upon the requirement that a valid guilty plea be the voluntary and intelligent choice of the accused, a plea is no more voluntary if primarily motivated by the existence of a confession violative of Escobedo than would be a plea primarily motivated by the existence of a coerced confession. We can perceive no possible rationale for a hierarchy of constitutional protections in this area such that a plea primarily motivated by a coerced confession could be collaterally attacked while a plea primarily motivated by a confession infirm under Escobedo could not. In either case the vice is identical -- the Commonwealth has procured a plea based primarily upon constitutionally infirm evidence the presence of which has precluded a voluntary and intelligent choice by the accused.

One further question remains and that is whether appellant is entitled to a hearing. In Garrett, although we held that the accused's allegations were sufficient to form the basis of a collateral attack upon his plea, we found that a hearing was not necessary because the

[ 430 Pa. Page 192]

    that appellant's plea was not primarily motivated by the confessions.

The order of the Court of Oyer and Terminer of Allegheny County is vacated and the record remanded for proceedings consistent with this opinion.


Order vacated.

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