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COMMONWEALTH v. MARSH (10/09/70)

decided: October 9, 1970.

COMMONWEALTH
v.
MARSH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Erie County, No. 413 of 1966, in case of Commonwealth v. Vernon C. Marsh.

COUNSEL

James D. McDonald, Jr., with him Quinn, Plate, Gent, Buseck & Leemhuis, for appellant.

Robert B. McCullough, Assistant District Attorney, with him William E. Pfadt, District Attorney, for Commonwealth, appellee.

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

Author: Eagen

[ 440 Pa. Page 592]

On November 15, 1966, the appellant, Vernon C. Marsh, in the presence of self-retained counsel, entered a general plea of guilty to an indictment charging him with the murder of Bruno C. Roehrl. After a hearing before a three-judge court, he was adjudged guilty of murder in the first degree, and sentenced to imprisonment for life. No appeal from the judgment was then filed.

In November 1967, March instituted proceedings seeking post-conviction relief. After an evidentiary hearing, the court concluded that Marsh had been denied his constitutional right to the assistance of counsel in the filing and prosecution of an appeal as mandated by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), and granted him permission to file motions for a new trial and in arrest of judgment as if timely filed. Such motions were then filed, and subsequently dismissed. This appeal followed.

The basic contention is that the plea of guilty should be invalidated because it was primarily induced or motivated by the existence of incriminating evidence obtained by the police through means which violated Marsh's constitutional rights. This evidence consisted of an oral and a written statement given by Marsh to the police, allegedly under coercive circumstances and in the absence of the complete warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), as well as a gun and bullets allegedly seized in an unlawful search.

Whether or not a guilty plea should be invalidated on this ground was the central question for decision in the recent cases of McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458 (1970), wherein the defendants sought relief in the federal courts from convictions

[ 440 Pa. Page 593]

    resulting from guilty pleas entered in state courts. The United States Supreme Court there held that a defendant must demonstrate all of the following to successfully collaterally attack a plea of guilty on such grounds: (1) an involuntary pretrial confession (or presumably any other constitutionally infirm incriminating evidence); (2) that the guilty plea was primarily motivated by such evidence; and, (3) that defendant was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial. In fact, the Court ruled that a defendant is not even entitled to a hearing in the federal courts on the mere allegation that his otherwise valid guilty plea was primarily motivated by an involuntary pretrial confession. And this is so even in those instances where there is an absence of proof other than the evidence of questionable evidentiary use.

As the Court pointed out, conviction after a plea of guilty is based not on the evidence in the hands of the prosecution, which may include a pretrial confession, but rather upon the defendant's own admission in open court that he committed the crime. The key question is whether the defendant had the opportunity to make a reasonable choice. The existence of an involuntary confession does not, in itself, demonstrate that the defendant did not make a reasonable choice, and thus it cannot establish, in itself, that the plea was not intelligently and knowingly entered.

In speaking of what constitutes incompetent advice by counsel, the Court in McMann, supra, stated that the showing of a mere miscalculation of otherwise competent counsel in assessing the admissibility of evidence by means which may not have conformed with constitutionally-required standards is not sufficient to establish that the plea was not intelligently and knowingly entered. ...


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