Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1957, No. 793, in case of Commonwealth of Pennsylvania v. James Allen.
Leon Katz, Michael J. Stack, Jr., and Donsky, Katz, Levin & Bashman, for appellant.
Milton M. Stein, 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. Chief Justice Bell. Mr. Justice Cohen took no part in the decision of this case.
Appellant James Allen, while represented by counsel, pleaded guilty to murder, and in 1957 was sentenced to life imprisonment. This is a so-called silent record case, for there was no indication on the record that appellant's guilty plea was voluntarily, knowingly and intelligently entered. Although no direct appeal was taken, the instant petition represents the fourth in a series of appellant's post-conviction attacks on his conviction and sentence.
In Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261, we remanded appellant's petition for a writ of habeas corpus for the reason that the
hearing Judge had been the District Attorney at appellant's trial. In United States ex rel. Allen v. Rundle, 233 F. Supp. 633 (E.D. Pa. 1964), appellant was denied relief both on the merits of his claims and because he had not exhausted all available State remedies. A petition for a certificate of probable cause was denied by the Court of Appeals for the Third Circuit on September 28, 1964, C. A. Misc. Record No. 34, as was a petition for a writ of certiorari, 382 U.S. 857. In Commonwealth v. Allen, 428 Pa. 113, 237 A.2d 201, we affirmed the dismissal of appellant's P.C.H.A. petition because he failed to show that his guilty plea was involuntarily entered.
Appellant's only contention on this appeal is that he is entitled to another evidentiary hearing to determine whether or not his guilty plea was voluntarily, knowingly and intelligently entered, with the burden of proof resting upon the Commonwealth. However, we have held that in a silent record case the burden rests upon the Commonwealth only as to guilty pleas entered after the date of our decision in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196. As we stated in Commonwealth v. Martin, 442 Pa. 41, 44, 272 A.2d 169, 171: "Appellant's second contention is that the Court erred in placing upon him the burden of proving that his plea was not voluntarily, knowingly, and intelligently made. In Commonwealth v. McBride, 440 Pa. 81, 269 A.2d 737, and in Commonwealth v. Knowles, 440 Pa. 84, 269 A.2d 739, we held that a defendant whose guilty plea was made before our decision in Commonwealth ex rel. West v. Rundle, 428 Pa., supra, has the burden of proving this contention." Accord, Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921; Commonwealth v. Fuller, 440 Pa. 161, 269 A.2d 652; Commonwealth v. Hart, 440 Pa. 175, 269 A.2d 740. Furthermore, as Justice Roberts stated in denying
appellant's second P.C.H.A. petition, Commonwealth v. Allen, 428 Pa., supra (page 117): "Although, regrettably, the trial record contains no examination of appellant as to the consequences of his decision to plead guilty, the post-conviction hearing judge chose to believe trial counsel and appellant has ...