obtain money for narcotics. Relator contends that this admission was given involuntarily.
In support of this contention, relator testified to the following facts: he had been an addict for approximately one year, and at the time of his arrest was consuming approximately twelve "bags" of heroin a day; he was unable to obtain any drugs for a twenty-hour period before his arrest and was suffering from the effects of drug withdrawal during his interrogation, and that the arresting officers were fully aware of his physical condition, to wit, he was highly nervous, sweating and nauseous.
There is a measure of truth in these assertions, complemented in part as they are by the Commonwealth's evidence, but the Commonwealth has established other, additional facts more credibly, some without refutation.
It is clear that relator's interrogation was brief: he admitted the purpose of his entry within a half hour after Detective McNichol began questioning him. Fed. N.T. 21, 23. Further, his interrogation was not "constant" during that time, id. at 22; Detective McNichol testified that relator appeared "nervous" while being questioned. Id. at 22-23. Officer Smith of the Narcotics Squad, in whose custody relator was placed after his questioning by Detective McNichol, testified that puncture marks present on relator's arms had begun to heal, or scab over, and this fact indicated that the needle marks were probably "a day or two days" old. Id. at 34. While relator was being held by the Narcotics Squad, a time which has not been determined exactly, Officer Smith observed relator to be "highly nervous". Id. at 35. Officer Smith further testified that after twenty-four hours without heroin, most addicts would begin to evince preliminary withdrawal symptoms, and that relator's sweatiness and nervous state conformed to that pattern - "They were not severe symptoms of withdrawal but perceptible * * *." Id. at 31. The "preliminary" nature of relator's withdrawal is further corroborated by testimony of Officer Smith and Detective McNichol, which we believe, that at no time during relator's interrogation by either man was relator nauseous, id. at 23, 31, and by relator's own testimony at his PCHA hearing that he was "starting to withdraw" when he admitted his criminal intent to Detective McNichol. State N.T. p. 11. We conclude that relator was not undergoing severe withdrawal at the time of his interrogation.
We have also decided that relator's repeated testimony that he was "real sick", e.g., Fed. N.T. 42, 44, 47-48, 69, 70, and that he admitted his criminal designs only after "constant interrogation", e.g., id. at 45, 71, simply are not worthy of belief. We think it significant that relator has never contended that he requested a doctor and was denied access to one. Compare United States ex rel. Collins v. Maroney, 287 F. Supp. 420, 422-424 (E.D.Pa., 1968). Relator had only a conveniently vague memory of his condition at the time of his questioning and could not remember exactly what he told Detective McNichol or Officer Smith, e.g., Fed. N.T. 45-46, yet he was able to remember the details of the Narcotic Squad's search of his home and was certain that he did not give his consent to it, id. at 47, an event which occurred several hours after his arrest when his withdrawal symptoms would have become more severe. See id. at 33 (testimony of Officer Smith; see United States ex rel. Collins v. Maroney, 287 F. Supp. 420, 423 (E.D.Pa., 1968). Rather, the fact that relator confessed his intent after only half an hour's questioning, see Bell v. Patterson, 279 F. Supp. 760, 764 (D.Colo., 1968), indicates that relator, more or less "caught in the act," readily admitted the purpose behind his presence in the apartment building. We are of the opinion that relator has not carried his burden and that it is more probable than not that relator's statement to McNichol was voluntary. Townsend v. Sain, 372 U.S. 293, 312, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). At the same time, it is not clear on this record what effect relator's preliminary withdrawal had upon his will. While this may be characterized as a failure of proof, we prefer not to rely upon the voluntariness of relator's confession, but rather the fact that it is clear on his record that, at all events, relator's pleas of guilty were voluntarily and understandingly entered.
We begin with the assumption that the trial court's failure to determine on the record whether relator understood the nature and the consequences of his guilty plea shifts to the Commonwealth the burden of proving the pleas' validity.
United States ex rel. McCloud v. Rundle, 402 F.2d 853 (C.A. 3, 1968). It is clear that this burden has been carried.
Relator's primary motivation for pleading guilty was the hope of a lenient sentence. Fed. N.T. 78-82. Relator's expressed concern for his previous statement to Detective McNichol, even if believed, and we do not believe it, was a secondary consideration which relator remembered to mention only once in his testimony before us. See id. at 72. The expected leniency was a five year sentence according to relator's testimony at his PCHA hearing, but when before us, the expected leniency had increased to a "county sentence" of less than two years. Fed. N.T. 76. More importantly, relator was aware of the nature of the charges against him. Id. at 65. He knew he could receive the maximum sentence of up to twenty years for burglary, id. at 75 and 76, and five years for use of narcotics. Id. at 81. Relator was also aware that his plea of guilty admitted the commission of the crimes charged. Id. at 82. Finally, at the trial in 1961, relator repeated his admission of criminal purpose during direct examination by his attorney:
"Q. Do you have anything you want to say to the Court? It happened just the way the officers said?