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COMMONWEALTH v. CUSHNIE (01/15/69)

decided: January 15, 1969.

COMMONWEALTH
v.
CUSHNIE, APPELLANT



Appeal from order of Court of Oyer and Terminer of Philadelphia County, April T., 1965, Nos. 817 and 818, in case of Commonwealth v. Leon Cushnie.

COUNSEL

Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 433 Pa. Page 132]

This is an appeal from the order of the Court of Oyer and Terminer of Philadelphia County, denying, after hearing, appellant's petition for post-conviction relief. On July 20, 1965, appellant pleaded guilty to murder generally and was found guilty of second degree murder. On the next day he was sentenced to four to ten years imprisonment. He brought this post-conviction proceeding, alleging the invalidity of his guilty plea.

Appellant asserts that his guilty plea was unknowing, as he was unaware of the nature and effect of the entry of the plea. He bolsters his claim by emphasizing that the plea must have been unknowing, for he never admitted that he was guilty of murder. The court below held the plea to be a knowing one, and we agree with that court.

We begin with the proposition that whenever the accused pleads guilty to an indictment, he is presumed to be aware of what he is doing. Therefore, the burden is ordinarily on the appellant to prove that he did not enter his guilty plea knowingly. Commonwealth v. Hill, 427 Pa. 614, 235 A.2d 347 (1967); Com. ex rel. Crosby v. Rundle, 415 Pa. 81, 202 A.2d 299 (1964), cert. denied, 379 U.S. 976, 85 S. Ct. 677

[ 433 Pa. Page 133]

(1965). It is a matter of credibility and the court may refuse to believe the appellant's version of what happened. Com. ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968); Commonwealth v. Hill, supra.

However, this Court has a number of times indicated that the trial court should conduct an on the record inquiry as to whether the plea is intelligently entered in order to prevent the dilemma of a hearing judge who "faced with a silent record, must either choose to disbelieve what appears to be credible and internally consistent testimony by the prisoner that he was never examined as to the consequences of his plea or grant the relief required." Com ex rel. West v. Rundle, supra, at page 106. In Com ex rel. Barnosky v. Maroney, 414 Pa. 161, 199 A.2d 424 (1964), this Court stated at page 165: "Before accepting and acting upon a plea of guilty, a court must be satisfied that the plea is voluntary and intelligently entered. It would be wise for the court to make particular inquiry as to defendant's knowledge of the nature of the charge, of his right to trial by jury, and of the general consequences of his plea. It is desirable to have such matters made known to the defendant by the court even though he be represented by counsel. When a defendant enters a plea to murder, more is required than simply his pleading orally or endorsing the indictment, as in other cases. See Act of May 15, 1895, P. L. 71, § 1, 19 P.S. § 462. Furthermore, proper administration of criminal justice suggests that the relevant attending facts and circumstances appear of record." (Emphasis added).

Then in Com. ex rel. West v. Myers, 423 Pa. 1, 222 A.2d 918 (1966), we stated: "When confronted with a defendant who manifests an intention to plead guilty to a criminal charge, even though that defendant may be represented by competent counsel, the ...


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