Appeal from order of Court of Oyer and Terminer of Philadelphia County, Jan. T., 1967, Nos. 2464 to 2466, inclusive, in case of Commonwealth v. Charles Culpeper.
Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
Leonard S. Goodman, Martin K. Miller 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, Roberts and Pomeroy, 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 relief under the Post Conviction Hearing Act. On May 3, 1967, appellant, Charles A. Culpeper, pleaded guilty to murder generally before a three judge panel. After a degree of guilt hearing, the court found appellant guilty of second degree murder, one judge being of the view that a conviction of first degree murder was warranted. Appellant filed no post-trial motions, and on May 4, 1967, he was sentenced to ten to twenty years imprisonment. No direct appeal was taken from the judgment of sentence.
On January 8, 1968, appellant filed a post-conviction petition. He made numerous allegations, which in essence amounted to four alleged errors: (1) he was represented by incompetent counsel; (2) his guilty plea was an unknowing one; (3) he was denied a right of allocution, and (4) he was denied his right to appeal. The court below found against appellant on the first two issues and did not discuss the next two. It denied the requested relief.
Appellant is represented on this appeal by the Defender Association of Philadelphia, which also represented
him below. The Defender Association requested permission to withdraw as counsel which permission was granted, conditioned on appellant's retaining other counsel. The condition precedent failed to occur, and the Defender Association filed a brief, arguing that appellant was denied his right to appeal. Appellant himself has also filed a brief -- virtually unintelligible as, quite naturally, are most prisoner-drawn briefs. However, it can be determined that appellant is once again raising the issues of incompetency of counsel and an unknowing guilty plea. In view of the strained relations between appellant and counsel, we have considered these two issues and find appellant's contentions to be without merit. Appellant's allegation of incompetent counsel was based on counsel's advice to plead guilty. Clearly this was a valid strategic choice in light of the Commonwealth's overwhelming case. Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). As for the allegation that the guilty plea was an unknowing one, there is a presumption that a defendant is aware of the consequences of his plea. The burden of rebutting such a presumption rests on the petitioner. Commonwealth v. Cushnie, 433 Pa. 131, 249 A.2d 290 (1969); 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). Appellant has failed utterly to meet this burden. Judge Chudoff in the trial court conducted a searching examination to ascertain that appellant was aware of the nature of the plea, of the results that flowed therefrom, of the possible consequences, and of the penalties that might be imposed.
The only remaining issue is the allegation that appellant was denied his right to appeal. Apparently the allegation is true, for appellant's trial counsel testified that he told appellant that appellant did not have the
right to appeal. However, the fact that appellant was denied the right to appeal does not here entitle him to any collateral relief. For appellant pleaded guilty. The plea in itself is sufficient to sustain a conviction of murder in the second degree. Commonwealth ex rel. Bostic v. Cavell, 424 Pa. 573, 227 A.2d 662 (1967). Thus the only issues available on direct review are the validity of the plea and the lawfulness of the sentence. Commonwealth v. Armstead, 430 Pa. 428, 243 A.2d 443 (1968); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967). Since both of these ...