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COMMONWEALTH v. ALVARADO (04/22/71)

decided: April 22, 1971.

COMMONWEALTH
v.
ALVARADO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1965, No. 67, in case of Commonwealth of Pennsylvania v. Julio Alvarado.

COUNSEL

David N. Savitt, with him John Patrick Walsh, for appellant.

Mark Sendrow, Assistant District Attorney, with him 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. Justice Roberts. Mr. Justice Cohen took no part in the decision of this case.

Author: Roberts

[ 442 Pa. Page 518]

On June 2, 1966, appellant Julio Alvarado pleaded guilty to an indictment charging him with rape and murder. Following a degree of guilt hearing, a three-judge panel found the homicide to be murder in the first degree and sentenced him to death. On January 14, 1970, Alvarado's petition for leave to withdraw his guilty plea was denied, and the present appeal followed.

The Commonwealth concedes that the prosecutor assigned to try Alvarado's case promised not to seek the death penalty in return for a guilty plea. In urging that he is now entitled to withdraw that plea, Alvarado contends that the prosecutor's promise was not kept and that he was denied the effective assistance of counsel.

I

In support of the ineffective counsel claim, we are referred to counsel's failure to object at the degree of guilt hearing to the introduction into evidence of certain gruesome and inflammatory photographs of the victim's body and to our holding in Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968), that such inflammatory photographs are not admissible unless of "essential evidentiary value". Id. at 278, 241 A.2d at 121. However, the degree of guilt hearing in the instant case took place two years prior to Powell, at a time when counsel might have reasonably believed that any objection would have been futile. See, e.g., Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). We therefore cannot conclude that counsel's decision not to object to the introduction of the photographs was without "some reasonable basis" designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). See also Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Skipper, 440 Pa. 576, 271 A.2d 476 (1970).

[ 442 Pa. Page 519]

The only other alleged ineffectiveness is counsel's failure to inform the court, prior to its acceptance of Alvarado's plea, of the prosecutor's promise not to seek the death penalty. It is undoubtedly the much better practice for the court to be made aware of the existence and nature of any plea bargain prior to the plea itself. See ABA Project on Minimum Standards for Criminal Justice, Pleas of Guilty ยง 1.5, Commentary (Approved Draft 1968); Note, 112 U. Pa. L. Rev. 865, 894-95 (1964). The potential benefits of disclosure are substantial. The court would be on notice to instruct the possibly confused defendant that the prosecutor's recommendation or lack of recommendation is in no way binding on the court. Moreover, an on-the-record disclosure of the plea bargain would serve both to protect the defendant in the event that the prosecutor does not subsequently abide by the plea bargain and to protect the Commonwealth against later false claims of unkept bargains. People v. West, 3 C. 3d 595, 91 Cal. Rptr. 385 (1970). We are not at this time, however, disposed to fashion a rule that counsel's failure to disclose a plea bargain per se constitutes ineffective assistance of counsel. In the instant case, there is ample indication that Alvarado understood that the court might not be swayed by the prosecutor's failure to seek the death penalty, and the Commonwealth admits the existence of the promise not to seek the death penalty. Absent any demonstrable prejudice, counsel's silence respecting the plea bargain did not in itself render his assistance of Alvarado constitutionally defective.

We wish to emphasize, however, that we will in the future expect defense counsel to see to it that the court is made aware of the existence and terms of any plea agreement. This responsibility is, of course, shared concurrently by the prosecutor and by the court itself. In this regard, we are in ...


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