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COMMONWEALTH v. LOVETT (03/18/71)

decided: March 18, 1971.

COMMONWEALTH
v.
LOVETT, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1956, Nos. 498 and 499, in case of Commonwealth of Pennsylvania v. Joseph Lovett.

COUNSEL

Peter B. Scuderi, for appellant.

Edward G. Rendell and Milton M. Stein, Assistant District Attorneys, 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, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result.

Author: Bell

[ 442 Pa. Page 106]

In May of 1956, appellant, Joseph Lovett, was arrested and charged with the murder of Robert Heffin. At his trial on February 4, 1957, appellant pleaded guilty to murder generally, with a certification by the Commonwealth that the crime would rise no higher than murder in the second degree. Appellant was represented by two attorneys when he entered his guilty plea, but there was no on-the-record colloquy concerning

[ 442 Pa. Page 107]

    the crime or the guilty plea or the voluntariness of the confession.

After hearing all the evidence, the trial Judge found the appellant guilty of murder in the second degree and sentenced him to not less than 7 1/2 nor more than 20 years in prison. No direct appeal from the judgment or imposition of sentence was taken.

In March of 1969, appellant filed a petition under the Post Conviction Hearing Act asserting (1) a denial at trial of the right to appeal; (2) the admission at trial of a coerced confession; (3) ineffective assistance of counsel; (4) the trial Judge improperly permitted the guilty plea to stand after hearing the evidence; and (5) the Court erred in reviewing the appellant's juvenile record prior to adjudicating the degree of guilt. On September 3, 1969, the hearing Judge, after hearing the testimony, rejected the appellant's contentions and dismissed the petition. Defendant then appealed.

In this appeal, appellant presents two contentions. Appellant first contends, relying upon Boykin v. Alabama, 395 U.S. 238, that his guilty plea was not voluntarily, knowingly and intelligently made. While Boykin sets forth the requirement of an "on-the-record examination" to establish that a guilty plea was voluntarily, knowingly and intelligently entered, we have held that this decision was not retroactive. Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923. Since appellant's trial took place in 1957 and the effective date of Boykin was June 2, 1969, the Boykin requirement of "on-the-record examination" does not apply to the present case.

Although this is a silent-record case, the plea was entered long before our decision in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196, and therefore the burden of proving that the plea was ...


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