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COMMONWEALTH v. BERRY (10/09/70)

decided: October 9, 1970.

COMMONWEALTH
v.
BERRY, APPELLANT



Appeal from order of Superior Court, Oct. T., 1968, No. 747, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1952, Nos. 1138, 1139, 1140, 1142, 1145, 1146, 1151, 1155, 1168, and 1169, in case of Commonwealth v. Harold Berry.

COUNSEL

Calvin S. Drayer, Jr., and White & Williams, for appellant.

T. Michael Mather, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 440 Pa. Page 155]

In 1952 appellant pleaded guilty to nine of thirty two bills of indictment charging him with burglary, and to one bill charging him with use and possession of narcotics. A hearing was then held at which the Commonwealth presented evidence only as to those bills to which appellant pleaded guilty; at the close of the hearing the Commonwealth's motion to nolle pros the remaining bills was granted. A sentence of six to twenty years was imposed on each of the nine burglary charges, the sentences to run concurrently, and sentence on the narcotics charge was suspended. No appeal was taken.

In January of 1967 appellant filed the present PCHA petition, claiming that his pleas were involuntary

[ 440 Pa. Page 156]

    since they were motivated by coerced confessions, and that he had been denied the effective assistance of counsel. An evidentiary hearing was held, with counsel, and relief was denied. This denial was affirmed by the Superior Court per curiam without opinion, see 213 Pa. Superior Ct. 770, 247 A.2d 247 (1968), and we granted allocatur. We now affirm.

Initially it is conceded by the Commonwealth that appellant's confessions were coerced. Appellant, a narcotics addict at the time of his arrest, began suffering withdrawal symptoms when taken into custody and the police administered morphine to him several times, thereby inducing his confessions. Of course, the fact that his confessions were involuntary does not, without more, invalidate his guilty pleas. Appellant must prove, inter alia, that the involuntary confessions were the primary motivation for the plea. See McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441 (1970); see, e.g., Commonwealth v. Copeland, 439 Pa. 293, 268 A.2d 751 (1970). And, despite the fact that this is a "silent record" case, the burden of proof still rests with appellant, his plea having been taken before our decision in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). Accord: Commonwealth v. McBride, 440 Pa. 81, 269 A.2d 737 (1970).

The hearing court found as a fact that appellant did not carry this burden. The evidence produced at the PCHA hearing indicates that appellant and counsel discussed the thirty-two burglary charges which were pending, and that appellant told counsel that he remembered committing nine of them. Accordingly, appellant pleaded guilty to only those nine. In addition, the transcript of appellant's preliminary hearing shows that there were eyewitnesses to at least several of the burglaries. Given this evidence, we cannot say that the hearing court abused its discretion in finding that appellant

[ 440 Pa. Page 157]

    had not proven that his plea was primarily motivated by ...


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