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decided: June 27, 1969.


Appeal from order of Court of Quarter Sessions of York County, May T., 1965, No. 265, in case of Commonwealth v. Ervin Henry Godfrey.


J. Patrick Clark, for appellant.

P. Nelson Alexander, Assistant District Attorney, and John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Pomeroy join in this opinion.

Author: Jones

[ 434 Pa. Page 533]

In April of 1965 appellant was indicted for murder and manslaughter by the York County Grand Jury. When his case came up for hearing, appellant chose to enter a plea of guilty to voluntary manslaughter. The hearing judge accepted the plea without conducting an on-the-record examination of the appellant to determine whether his plea was made intelligently and voluntarily. Appellant has now filed a petition under the Post Conviction Hearing Act in which he alleges that his guilty plea was not entered into voluntarily and intelligently because he was never informed by his counsel or the court of the meaning and consequences of a guilty plea. The court below conducted a hearing after which it held that appellant's plea was made voluntarily and intelligently and thus denied the petition. Appellant has appealed this decision to our Court.

On June 2 of this year, the United States Supreme Court handed down an opinion in which it held that it is reversible error for a trial judge to accept a guilty

[ 434 Pa. Page 534]

    plea without an affirmative showing on the record that the plea was made intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274 [37 Law Week 4474] (1969). If the court or the prosecution does not conduct an on-the-record examination of the defendant before accepting his plea, the plea is vitiated and the defendant is entitled to a new hearing. "It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." (37 Law Week at 4475). There is no question that in the case now before us there was no affirmative showing on the record that appellant's plea was made knowingly and intelligently. Therefore, the question we must answer is whether Boykin applies to this case.

Appellant was, of course, sentenced long before Boykin was decided, so that we must determine whether Boykin must be applied retroactively. In handing down its opinion in Boykin, the Court was silent on this question, so that we must make our own determination based on the standards set forth in prior Supreme Court decisions dealing with the retrospective versus prospective application of decisions in the criminal area.

The general principle guiding all such determinations was formulated by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601 (1965), holding that the search and seizure rule of Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081 (1961), was to be applied prospectively only. Speaking for the majority, Mr. Justice Clark stated, "Thus, the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective. . . . Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision

[ 434 Pa. Page 535]

    retrospectively, we must then weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." (381 U.S. at 628, 629) The considerations which should be weighed in the balance in determining whether a decision should be applied prospectively only were spelled out in greater detail by the Court in Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882 (1966), holding that Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966) would not be applied retroactively. In Johnson, the Court stated, "We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda." (384 U.S. at 727) The majority stressed that "the choice between retroactivity and non-retroactivity in no way turns on the value of the constitutional guarantee involved." (384 U.S. at 728) In holding that Escobedo and Miranda need not be applied retroactively, the Court pointed out that a defendant who wished to challenge the validity of his confession could still argue that the confession was not voluntary, relying on the long line of Supreme Court decisions striking down coerced confessions. "We emphasize that the question whether a constitutional rule ...

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