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decided: October 12, 1971.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1961, No. 862, in case of Commonwealth of Pennsylvania v. Walter Lee Wright.


Dennis R. Suplee, with him Schnader, Harrison, Segal & Lewis, for appellant.

Milton M. Stein, Assistant District Attorney, with him Richard Max Bockol, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Eagen

[ 444 Pa. Page 589]

The appellant, Walter Lee Wright, was convicted by a jury of murder in the first degree, and the punishment

[ 444 Pa. Page 590]

    was fixed at life imprisonment. After sentence was imposed by the court, as the jury directed, an appeal was filed in this Court. We subsequently reversed the judgment and awarded a new trial because of certain trial errors. See 415 Pa. 55, 202 A.2d 79 (1964).

When Wright was called for retrial, he entered with the advice of counsel a general plea of guilty to the murder indictment. After an evidentiary hearing the court found him guilty of murder in the second degree and imposed a sentence of imprisonment of 9 to 20 years.*fn1 No appeal was entered.

Wright later filed a petition seeking post-conviction relief, alleging, inter alia, that the guilty plea was not knowingly and intelligently entered. After an evidentiary hearing, the petition was dismissed and this appeal is from that order.

Wright having been once convicted of murder in the first degree and sentenced to life imprisonment, it was constitutionally impermissible to place him in jeopardy of a death sentence on retrial. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969).*fn2 Nevertheless, the record of the plea proceedings shows that before Wright entered the guilty plea, he was told by the trial judge that if he plead "not guilty" and elected to stand trial before a jury, it was possible for the jury to find him guilty of murder in the first degree and to fix the penalty at death. To illustrate this the judge cited two instances from memory where the jury had fixed the punishment at death at the second

[ 444 Pa. Page 591]

    trial and one of the defendants had been executed. The record also discloses that at the post-conviction hearing below, Wright testified without contradiction that one of two court-appointed trial counsel gave him the same erroneous advice, and that his fear of the death penalty influenced his guilty plea. Additionally, the testimony of his chief trial counsel at the post-conviction hearing, while evasive in material part, is persuasive that when he discussed with Wright the advisability of pleading guilty he was mistakenly of the opinion that Wright was in jeopardy of a death sentence if he elected to be tried by a jury at the second trial and that he so told Wright, albeit he also told him such a possibility was not likely. In view of this record, the court below erred in concluding the guilty plea was knowingly and intelligently entered.

To render an intelligent and knowing decision with respect to a choice between pleading guilty and standing trial, reason dictates that the one making the choice be aware of what each possibility entails. If he is not, his choice can hardly be said to be "intelligent." And, this is particularly so where if one choice is made, it involves waiving valuable rights guaranteed by the United States Constitution, such as the right against self-incrimination (Fifth Amendment), and the right to demand a jury trial (Sixth Amendment). Herein, Wright was deprived of properly evaluating and asserting these rights by a false understanding inspired by erroneous advice received both from his trial counsel and the court.

In relative instances, it has been held that a guilty plea is not intelligently and knowingly entered unless the accused is aware of the consequences thereof, including the possible punishment. Cf. McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166 (1969), and

[ 444 Pa. Page 592]

Order reversed and record remanded with directions to proceed consonant with this opinion.


Order reversed and record remanded with directions.

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