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COMMONWEALTH v. SERVEY (05/09/69)

decided: May 9, 1969.

COMMONWEALTH
v.
SERVEY, APPELLANT



Appeal from order of Court of Oyer and Terminer of Lycoming County, Nov. T., 1966, No. 1, in case of Commonwealth v. Joseph T. Servey.

COUNSEL

John P. Campana, for appellant.

Allen E. Ertel, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result.

Author: Pomeroy

[ 434 Pa. Page 435]

After four days of trial on charges of armed robbery, larceny and murder, appellant requested leave to change his plea from not guilty to guilty. Following an extensive on-the-record investigation into appellant's understanding of the nature of the charges against him, the consequences of his plea, the voluntariness of his decision to enter a guilty plea, and his satisfaction with the assistance rendered him by his two court-appointed attorneys, the court accepted the plea of guilty. After appellant executed a Consent and Waiver of his right to have the court en banc determine the degree of his guilt and the sentence, the trial court found the defendant guilty of murder in the first degree and sentenced him to life imprisonment. At the time of determination of the degree of guilt, again prior to imposing sentence, and then immediately after sentencing, the trial judge questioned Servey as to the voluntariness of his plea and as to his understanding of the charges against him and of the consequences of his plea.

Servey thereafter filed a post-conviction petition, alleging, inter alia, that despite his repeated assertions at the time of trial that his plea was voluntary, it had in fact been the involuntary result of coercion. The court below held an evidentiary hearing, found no merit in this contention, and denied the petition. This appeal followed, and the voluntariness of the plea is the principal issue pressed on appeal.

[ 434 Pa. Page 436]

The incident which gave rise to these charges was a robbery of the Greystone Garage in Williamsport, during which the attendant was shot twice and killed and $700 was stolen. In the course of the trial, the Commonwealth introduced evidence that placed appellant at the garage five minutes before the shooting. The evidence also showed that a revolver recovered from Servey's car contained two expended cartridges, one of .38 calibre and one of .357 magnum calibre, the same calibre as the two bullets recovered from the garage after they had passed through the victim. The cartridges were in the revolver in the same order as the two recovered lethal bullets had been fired. In addition, $383 was recovered from Servey's wallet and automobile at the time of his arrest, although he had been unemployed prior to the robbery and had been living on handouts of less than $10 from members of his family.

After the Commonwealth had introduced the above evidence, it called as a final witness Servey's halfbrother, one Caputo. At this point appellant's counsel requested an offer of proof, and in appellant's presence the Commonwealth indicated that Caputo would testify that Servey had shown him the revolver six days before the robbery-murder and announced his intention to rob the Greystone Garage, leaving no witnesses. After hearing this offer, appellant's counsel requested a recess. Thereafter Servey asked leave to change his plea.

During the recess immediately before his change of plea, appellant conferred with his counsel, his minister and four members of his family. Servey's present assertion that his guilty plea was involuntary and hence should be withdrawable rests on the proposition that the plea was coerced by a fear of death in the electric

[ 434 Pa. Page 437]

    chair engendered during this conference. He maintains that this fear was his sole reason for changing his plea, although he was fully aware that the judge himself could impose the death sentence and ...


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