Appeal from order of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1961, No. 300, in case of Commonwealth v. Robert Walker.
Philip Price, Jr., and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.
Paul R. Michel and James D. Crawford, Assistant District Attorneys, 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.
This is an appeal from the denial, after hearing, by the Court of Oyer and Terminer of Philadelphia County, of appellant's petition for post-conviction relief. Appellant, after a plea of guilty, had been convicted of first degree murder in 1962. The evidence indicated that appellant, along with one Earl Franklin, had burglarized a store in North Philadelphia, that they had both beaten the proprietor, and that Franklin had stabbed him, causing his death. At the degree of guilt hearing, a confession given by appellant was introduced without objection, and appellant took the stand in his own behalf.
Appellant, represented by counsel in his Post Conviction Petition, asserts three grounds for relief. He alleges (1) an involuntary confession induced his guilty plea; (2) he entered the guilty plea unknowingly, being unaware of the consequences of such plea; and (3) he was denied effective assistance of counsel. We find no merit in any of these.
We consider first the claim that his guilty plea was motivated primarily by an involuntary confession. Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967). There was testimony, tending to refute appellant's claim, from one of appellant's two trial counsel that appellant's fear of the electric chair was a factor in causing him to enter the plea, and that the Commonwealth indicated that it would not ask for the death penalty if appellant pleaded guilty. However, the same counsel also testified as follows: "Q. Would you say, sir, that the basis of your recommendation as to a plea was because of the statement he had already given? A. I would say a fair answer is that that is really the main basis of it. The only other thing is the palm print. And, standing alone, I don't know how much weight that would have had, but I would say mainly the statement." Taking all of the testimony together, it may be possible to reconcile it by viewing the above quotation as counsel's legal basis for recommending the plea, and the testimony about a possible death sentence as a motivation apart from the legal aspects of the case. However, we need not decide whether the confession was indeed the primary motivation for the guilty plea, for it is clear that the confession was voluntary.*fn1
According to the notes of appellant's trial counsel who testified at the hearing, appellant was arrested no earlier than 7:30 p.m. on the evening of May 18, 1961. He was then taken to City Hall, placed in a cell, taken out for a lineup, and returned to the cell. He confessed orally at 9:00 p.m. and later this was reduced
to writing. Appellant here asserts that his confession was involuntary, because of his low mental capacity and because "they were going to drag my cousin into it."
Appellant had a seventh grade education and some history of mental deficiency. However, he could read and was able to conduct his own affairs with little difficulty. We had occasion recently to treat this issue of retarded mental capacity in Com. ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A.2d 434 (1968). In addition to asserting his mental deficiency, Joyner also asserted that he was not warned of his rights. Although not stressed in the instant case, that factor is present to some extent here, for appellant apparently was warned only that everything he said might be used against him, and was not given the other warnings. What we said in Joyner, at page 159, is apposite here: "In Butler, [ Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968)] we indicated that voluntariness is dependent on many factors. Appellant asserts, as factors tending to make the confession involuntary, his retarded mental state and the fact that he was not warned of his rights. There is no doubt that the mental state of the accused is a relevant factor in determining voluntariness, as it bears on his ability to resist questioning. Butler, supra; Culombe, supra [ Culombe v. ...