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