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COMMONWEALTH v. ALLEN (06/01/71)

decided: June 1, 1971.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1948, No. 488, in case of Commonwealth of Pennsylvania v. David Allen, Jr.

COUNSEL

Edmund E. DePaul, with him DePaul & Manos, for appellant.

Milton M. Stein, Assistant District Attorney, Norris E. Gelman, 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, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 443 Pa. Page 449]

On November 10, 1948, appellant David Allen, Jr. was tried before a jury for murder, voluntary manslaughter and involuntary manslaughter. These charges arose from the fatal shooting of a Philadelphia police officer on June 13, 1948. After the Commonwealth had presented its case, the appellant, who was represented by an attorney, withdrew his plea of not guilty and entered a plea of guilty to murder generally. Three Judges were impaneled to determine the degree of guilt. After a hearing, the three-Judge Court found appellant guilty of murder in the first degree and imposed a sentence of life imprisonment. No post-trial motions were filed.

In December of 1966, appellant filed a petition under the Post Conviction Hearing Act.*fn* After a hearing, the Judge found that (1) appellant had not been informed of his post-trial rights, i.e., the right to file post-trial motions or to appeal the verdict, (2) appellant had not knowingly and intelligently abandoned or waived his post-trial rights, and (3) appellant was deprived of effective assistance of counsel following his conviction. The Court entered an Order on June 13, 1968, allowing appellant to file post-trial motions and ordering a Court en banc be convened to hear argument on appellant's motions.

Appellant's motions were heard by a three-Judge Court on December 10, 1969. On May 25, 1970, a final Order was entered by the Court denying appellant's post-trial motions, and thereafter this appeal was taken. In all the above-mentioned proceedings, appellant was represented by counsel.

In this appeal, appellant presents three questions: (1) whether the examination of certain witnesses by

[ 443 Pa. Page 450]

    the trial Judge was so prejudicial as to necessitate the granting of a new trial; (2) whether appellant's guilty plea was voluntarily, knowingly and intelligently entered; and (3) whether appellant was afforded effective assistance of counsel during his trial.

Appellant complains that during the course of his actual trial and before he entered his guilty plea, the trial Judge cross-examined certain witnesses in a manner which helped the Commonwealth prove its case. The alleged improper action by the trial Judge is of no moment, because, as we recently said in Commonwealth v. Culbreath, 439 Pa. 21, 264 A.2d 643 (page 26): "'"A plea of guilty, knowingly made, constitutes an admission of guilt and is a waiver of all non-jurisdictional defects and defenses." Commonwealth v. Garrett, 425 Pa. 594, 597, 229 A.2d 922, 924 (1967); Commonwealth ex rel. Foeman v. Maroney, 420 Pa. 486, 218 A.2d 230 (1966); Commonwealth ex rel. Walls v. Rundle, 414 Pa. 53, 198 A.2d 528 (1964).' Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347." See also Commonwealth v. Jaynes, 440 Pa. 97, 269 A.2d 457; Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172. Accord, Commonwealth v. McBride, 440 Pa. 81, 269 A.2d 737. Therefore, any alleged errors which occurred during the uncompleted trial were waived when appellant entered his guilty plea.

Appellant next contends that his guilty plea was not voluntarily, knowingly and intelligently made. The test for voluntariness was recently set forth in our Opinion in Commonwealth v. Enty, 442 Pa. 39, 271 A.2d 926, wherein we stated (page 40): "The test for the voluntariness of a plea of guilty has been iterated numerous times, although at times in slightly different language, and may be thus stated: To be Constitutionally ...


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