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decided: March 18, 1971.


Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1966, No. 15, in case of Commonwealth of Pennsylvania v. Gus Kontos.


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 Pomeroy. Mr. Justice Cohen took no part in the decision of this case.

Author: Pomeroy

[ 442 Pa. Page 358]

On March 14, 1966, one Hazel Deere, a 72 year old spinster, was murdered during the course of a robbery committed at her apartment. Shortly thereafter the appellant, Gus Kontos, was arrested and charged with the crime, to which he confessed. On October 3, 1966, Kontos, represented by private counsel, entered a plea of guilty to murder generally,*fn1 and at a subsequently held degree of guilt hearing before a three-judge court, he was found to be guilty of murder in the first degree. The sentence imposed was life imprisonment. No appeal was taken.

[ 442 Pa. Page 359]

On January 2, 1970, the appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq., alleging that his guilty plea was not knowingly entered because it had been primarily motivated by a constitutionally infirm confession. Following a counseled hearing, at which testimony of Kontos and his trial counsel was presented, the hearing judge entered an order denying relief. This appeal followed.

We deem it important initially to note the law in Pennsylvania with respect to collateral attacks on guilty pleas which are alleged to have been primarily motivated by constitutionally infirm confessions. In order successfully to overturn a plea on such grounds, a defendant must first show that he was so incompetently advised by counsel that he could not, under the circumstances, have knowingly and intelligently pleaded guilty. McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763 (1970); Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970); Commonwealth v. Rogers, 440 Pa. 598, 269 A.2d 449 (1970); Commonwealth v. Ward, 442 Pa. 351, 275 A.2d 92 (1971). Our inquiry, therefore, is appropriately directed to the reasonableness of counsel's assessment of the case and his advice to his client in light thereof, including advice as to the implications and consequences of entering a guilty plea. Commonwealth v. Ward, supra, at p. 351.

Neither in his PCHA petition nor at the hearing thereon did appellant assert that his trial counsel was incompetent in any manner. Moreover, our independent review of the record satisfies us that counsel acted competently in assessing appellant's case, advising a plea of guilty, and making appellant aware of the consequences of entering such a plea. Accordingly, appellant's assertion that he should now be allowed to withdraw his guilty plea must fail.

[ 442 Pa. Page 360]

When a defendant enters a plea of guilty to murder generally, however, he does not thereby waive his right to object to improper evidence which would bear on his degree of guilt and the punishment to be imposed. Commonwealth v. Marsh, supra, at p. 594; Commonwealth v. Garrett, 425 Pa. 594, 597, 229 A.2d 922 (1967). In this regard, the record reveals that on the evening of Kontos' arrest he made oral statements to the police indicating he had planned the Hazel Deere robbery at least one week in advance and that he, with others, actively participated in the robbery during which the injuries causing Miss Deere's death were inflicted. Following a suppression hearing conducted between September 6 and September 19, 1966,*fn2 it was held that these oral statements would be admissible at Kontos' trial. Our review of the record of that hearing compels the conclusion that the confession would not have been admissible at trial, because Kontos was never adequately advised by the interrogating police officers of his right to the assistance of free counsel, if indigent, as dictated by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).*fn3 See Commonwealth v. Yount, 435 Pa. 276, 279, 256 A.2d 464 (1969); Commonwealth v. Dixon and Kontos, 432 Pa. 423, 426 (1968). It follows that the statements should not have been used at the degree of guilt hearing.

Notwithstanding the error of admitting the statements into evidence, we conclude that on the record before us appellant is foreclosed from raising the issue on later collateral attack. Counsel made no objection

[ 442 Pa. Page 361]

    to the admission of the confession at the hearing. By itself, this would not be sufficient to preclude our review in light of what we said in Commonwealth v. Jefferson, 423 Pa. 541, 546-547, 226 A.2d 765 (1967): "As a general rule, if the admission of evidence is to be reviewed, an objection to the introduction thereof, with stated reasons, should be noted of record at trial. See 1 Henry, Pennsylvania Trial Evidence §§ 418, 419 (3d ed. 1940). And, an insistence on compliance with this procedural regulation serves a legitimate state interest. However, an individual foregoes the privilege of asserting a claim of violation of constitutional rights only if he knowingly and intelligently decides not to insist thereon, or if his counsel for purposes of trial strategy decides not to raise the question." See also Commonwealth v. Cheeks, 429 Pa. 89, 97, 239 A.2d 793 (1968).

The record here contains colloquies between appellant's trial counsel and the bench which indicate that both counsel and the court en banc were aware of the possible constitutional infirmity of appellant's confession. One of the judges inquired of counsel whether he was going to contest the admissibility of the confession, but counsel declined the opportunity to make an objection. We can only conclude, in light of the strong Commonwealth case quite apart from appellant's confession,*fn4 that counsel's failure to object was a deliberate decision of trial strategy. Accordingly, appellant may not now litigate the admissibility of his confession at his degree of guilt hearing.

[ 442 Pa. Page 362]

Order affirmed.


Order affirmed.

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