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COMMONWEALTH v. DENNIS (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
DENNIS, APPELLANT



Appeal from order of Superior Court, Oct. T., 1969, No. 1137, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1961, No. 597, in case of Commonwealth of Pennsylvania v. Sylvester Dennis.

COUNSEL

Jonathan Miller, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

T. Michael Mather, 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., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.

Author: Pomeroy

[ 444 Pa. Page 329]

This is an appeal from an order of the Superior Court affirming an order of the Court of Common Pleas of Philadelphia County denying the petition of Sylvester Dennis, appellant, for relief under the Post Conviction Hearing Act.

On April 24 and 25, 1962, appellant was tried before a jury on charges of burglary, larceny, conspiracy and receiving stolen goods. At the close of the Commonwealth's case, the court sustained a demurrer to

[ 444 Pa. Page 330]

    the receiving stolen goods charge, and appellant then changed his plea and pleaded guilty to the remaining charges. The court imposed sentence of 4-10 years imprisonment. No direct appeal was taken, and it is conceded that Dennis was not informed of his Douglas rights.

In his PCHA petition, appellant contends that his guilty plea was unintelligently and unknowingly entered (a) because it was primarily motivated by the introduction into evidence of a tacit admission and (b) because the prosecution threatened to press for a sentence greater than the law permitted, a fact of which appellant was unaware, unless he changed his plea. The hearing court found no merit in these arguments, and the Superior Court affirmed, 216 Pa. Superior Ct. 824, 266 A.2d 526 (1970). We granted allocatur, and conclude that the lower court and the Superior Court properly denied relief.

During the prosecution's case-in-chief, prior to the time appellant changed his plea, it introduced testimony by a police officer that he had read to appellant the confession of a co-defendant which implicated appellant, that he had asked Dennis to sign it, and that Dennis had refused to sign and had neither admitted nor denied the accusation. Appellant argues that introduction of the tacit admission was the primary motivation of his changed plea, that because he had not been informed of his appeal rights his conviction was not "final" as of the date of Miranda (Miranda v. Arizona, 384 U.S. 436 (1966)), that therefore under our decisions in Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968) and Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967), the admission into evidence of the tacit admission was improper, that the primary motivation test applicable to coerced confessions, Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967), should be applied to tacit admissions,

[ 444 Pa. Page 331]

    and that McMann v. Richardson, 397 U.S. 759 (1970) is ...


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