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COMMONWEALTH v. DUNCAN (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
DUNCAN, APPELLANT



Appeal from judgment of sentence of Court of Oyer and Terminer of Delaware County, Sept. T., 1959, No. 524, in case of Commonwealth v. Johnnie Lee Duncan.

COUNSEL

Anthony F. List, Assistant Public Defender, with him R. Barclay Surrick, Assistant Public Defender, and Charles J. Odgers, Jr., Public Defender, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Eagen

[ 437 Pa. Page 320]

On March 24, 1960, Johnnie Lee Duncan entered a general plea of guilty to an indictment charging him with the murder of his wife. A hearing followed before the court, and Duncan was adjudged guilty of murder in the first degree and was sentenced to life imprisonment. Throughout these proceedings, Duncan had the assistance of legal counsel. No appeal was entered.

In April 1965, Duncan filed a petition for habeas corpus, which was dismissed after a hearing by the trial court. On appeal we affirmed. See 424 Pa. 385, 227 A.2d 659 (1967). In these proceedings Duncan

[ 437 Pa. Page 321]

    was without counsel on appeal, but had the assistance of privately retained counsel in the trial court.

In July 1967, Duncan instituted proceedings in the United States Court for the Eastern District of Pennsylvania, and that court concluded Duncan had not been fully advised of his right to appeal from his conviction and sentence, and directed that the State court permit him to file post-trial motions as if timely filed. This mandate was obeyed, and a motion for a new trial was filed. After argument, this motion was dismissed and Duncan filed this appeal. In the prosecution of the new trial motion below and in this appeal, Duncan has had counsel.

It is first urged that Duncan's guilty plea of March 24, 1960, was invalid because it was not "knowingly and intelligently" entered. The record establishes otherwise.

The trial record discloses that, before the plea was accepted, Duncan, in response to questions by the trial judge, clearly indicated that he knew that he was pleading guilty to murder and that, after the evidence was presented, it was for the court to decide the crime of which he was guilty and the punishment to be imposed. At the hearing that followed, two eyewitnesses testified to seeing Duncan stab his wife with a knife, causing the wounds which resulted in her death. Duncan testified personally and, during the course thereof, admitted that he stabbed his wife during an argument. He testified in part: "I pushed her back and I run my hand in my right pocket, I pull out a knife and I open it and I start cutting her."

While it is true that the record of the plea proceedings fails to disclose any inquiry by the court to insure that the plea was ...


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