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COMMONWEALTH v. WATERS (01/25/71)

decided: January 25, 1971.

COMMONWEALTH
v.
WATERS, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1962, No. 72, in case of Commonwealth of Pennsylvania v. Warren Waters.

COUNSEL

H. David Rothman, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 441 Pa. Page 513]

Petitioner pleaded guilty to murder generally and on February 27, 1963, was adjudged guilty of murder in the first degree and sentenced to life imprisonment. No direct appeal was taken from the judgment of sentence. On June 25, 1968, petitioner filed a petition under the Post Conviction Hearing Act,*fn1 contending that his guilty plea had been unlawfully induced, that he had been ineffectively represented by counsel, and that he had been denied his right to appeal. The petition was dismissed after a hearing and this appeal ensued.

Petitioner testified that at the time of his arrest a police officer struck him violently in the stomach several

[ 441 Pa. Page 514]

    times without provocation. This was corroborated by several other eyewitnesses and so found as a fact by the hearing court.*fn2 Petitioner further testified that the same officer who had assaulted him visited him in his cell at the police station and told him that he might as well confess inasmuch as his accomplice had already given a statement implicating petitioner in the homicide. According to petitioner, he then decided to confess in order to forestall a second beating. Shortly thereafter petitioner did in fact confess to another police officer.

In order for an accused to avoid the consequences of a guilty plea on the basis of a coerced confession, he must demonstrate, inter alia, that the existence of the illegally obtained confession was the primary motivation for the plea. See, e.g., Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967). Petitioner's own testimony at the PCHA hearing, however, refutes any assertion that his confession was the primary motivation for guilty plea. On cross-examination petitioner was asked: "Q. . . . And wasn't it because you were afraid that it might be first degree with that death penalty that caused you to plead guilty in the hope of getting life imprisonment, isn't that true? Isn't that true? A. Yes, sir." On redirect examination petitioner was again asked (this time by his own counsel): "Q. Are you saying that the only reason you pled guilty was to avoid the electric chair? A. Yes, sir. Q. That is the sole reason? A. Yes, sir." Upon this record petitioner's plea is not susceptible to attack on the basis of his confession.

Respecting the contention of ineffective assistance of counsel, petitioner testified as follows: His trial counsel, Herbert Blumenfeld, met with him only once for one or two minutes one week prior to trial. At that

[ 441 Pa. Page 515]

    brief meeting, Blumenfeld did not discuss the case with him or ask him any questions but merely stated: "Don't worry about it, it won't be the worst." On the day of trial Blumenfeld's only further advice to petitioner was: "If you plead guilty, I'll get you second degree." Although petitioner subsequently testified as a witness on his own behalf, Blumenfeld did not prepare him in any way. Finally, petitioner asserted that Blumenfeld ...


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