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COMMONWEALTH v. WARD (03/18/71)

decided: March 18, 1971.

COMMONWEALTH
v.
WARD, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1960, No. 913, in case of Commonwealth v. Columbus Ward.

COUNSEL

Arthur S. Kafrissen, and Halbert, Kanter, Hirschhorn & Gilson, for appellant.

Martin H. Belsky, 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 Pomeroy. Mr. Justice Cohen took no part in the decision of this case.

Author: Pomeroy

[ 442 Pa. Page 353]

On January 9, 1961, the appellant, represented by counsel, entered a plea of guilty to murder generally. Following a degree of guilt hearing at which the District Attorney certified to the court that the crime rose no higher than murder in the second degree, appellant was found guilty of that crime by the trial court. No appeal was taken. In 1969 the appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยงยง 1180-1 et seq. alleging (1) that his guilty plea was primarily motivated by an involuntary confession, (2) that his guilty plea had not been knowingly entered, (3) that the evidence adduced at the degree of guilt hearing would not support any verdict greater than voluntary manslaughter, and (4) that his right to appeal had been unlawfully obstructed. Counsel was appointed and, following a hearing, relief was denied. This appeal followed. We shall discuss these claims seriatim.

(1) Initially we note that a defendant may no longer successfully make a collateral attack upon his guilty plea by proving merely that the plea was primarily motivated by an involuntary or otherwise constitutionally infirm confession. See, e.g., Commonwealth v. Spruill, 437 Pa. 530, 531, 263 A.2d 471 (1970); Commonwealth v. Garrett, 425 Pa. 594, 598, 229 A.2d 922 (1967). In addition to showing these factors, a defendant in order to be entitled to relief must also prove "serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act." McMann v. Richardson, 397 U.S. 759, 774, 25 L. Ed. 2d 763 (1970); United States ex rel. Broaddus v. Rundle, 429 F. 2d 791 (3d Cir. 1970). See Commonwealth v. Marsh, 440 Pa. 590,

[ 442 Pa. Page 354271]

A.2d 481 (1970). Our inquiry then is directed to the reasonableness of counsel's assessment of his client's case and his advice to the client in light thereof, including advice as to the implications and consequences of entering a guilty plea.

Appellant's trial counsel testified at the PCHA hearing that he and his co-counsel interviewed the appellant at least twice prior to trial, discussed with appellant the findings of their investigation,*fn1 recommended a plea of guilty based on their assessment of the case,*fn2 and explained to appellant that a guilty plea meant he would not have a trial and that in all probability

[ 442 Pa. Page 355]

    a prison sentence of eight to ten years would be imposed. Based on our review of the record we find that counsel's assessment of the case was indeed reasonable and his advice as to plea well founded. We have no hesitancy in concluding that appellant has failed to prove the "serious derelictions" on the part of counsel which are necessary to support his claim. Accordingly, petitioner's claim that he should now be allowed to withdraw his plea because it was primarily motivated by his involuntary confession must fail.

(2) The appellant further asserts that he could not knowingly have entered a guilty plea because he was not fully apprised of the meaning and consequences of entering such a plea. As previously noted, this allegation was contradicted by trial counsel's testimony. The hearing court accepted counsel's version, and found that appellant had not carried his burden of proof on this issue. See Commonwealth v. McBride, 440 Pa. 81, 269 A.2d 737 (1970). Absent some error of law, this conclusion of the hearing court will not be disturbed on appeal. Commonwealth v. Young, 433 Pa. 146, 249 A.2d 559 (1969). Furthermore, although the ...


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