decided: October 12, 1971.
Appeals from judgment of sentence and order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1960, No. 112, in case of Commonwealth of Pennsylvania v. Stanley Moroz.
William G. Klenk, II, for appellant.
James T. Owens, 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. Chief Justice Bell. Mr. Justice Cohen took no part in the decision of this case.
[ 444 Pa. Page 494]
On the evening of May 14, 1960, the Mayfair Bowling Alley was broken into and approximately $50 in small change was taken from the cash drawers of the coin-operated vending machine. The investigating police officers found a 70-year-old man named Frank Seibert lying in the bowling alley, badly beaten. At 3:30 A.M. the following day, Seibert was pronounced dead; his death resulted from a fractured skull and hemorrhaging.
The police investigation focused on Stanley Moroz, because they had received several reports of his making purchases and paying for everyday services with a quantity of small change in the general neighborhood of the Mayfair Bowling Alley. On May 17, 1960, he was arrested and signed a written confession the following day. On September 21, 1960, appellant Moroz, while represented by counsel, pleaded guilty to a murder indictment before a three-Judge Court. Appellant was found guilty of murder in the first degree and sentenced
[ 444 Pa. Page 495]
to life imprisonment. No post-trial motions were filed.
On November 29, 1969, a petition for a new trial was filed under the Post Conviction Hearing Act and a hearing was held before the same three Judges who originally heard the case. They granted appellant leave to file an appeal as if timely filed because appellant was not adequately informed of his right to appeal, but dismissed the petition in all other respects. Upon appeal, we remanded the case to the lower Court with leave to file post-trial motions, and with a right to appeal if such motions were denied. Motions for a new trial and in arrest of judgment were filed in the Court below and denied, and these appeals followed.*fn1
Appellant first contends that the Commonwealth has the burden of proof to establish that his guilty plea was voluntarily, knowingly and intelligently entered in 1960. In Commonwealth v. Martin, 442 Pa. 41, 272 A.2d 169, the Court said (page 44): "Appellant's second contention is that the Court erred in placing upon him the burden of proving that his plea was not voluntarily, knowingly, and intelligently made. In Commonwealth v. McBride, 440 Pa. 81, 269 A.2d 737, and in Commonwealth v. Knowles, 440 Pa. 84, 269 A.2d 739, we held that a defendant whose guilty plea was made before our decision in Commonwealth ex rel. West v. Rundle, supra [428 Pa. 102, 237 A.2d 196], has the burden of proving this contention." See also Commonwealth v. Enty, 442 Pa. 39, 271 A.2d 926; Commonwealth v. Brown, 443 Pa. 21, 275 A.2d 332 (1971).
With the foregoing principles in mind, we shall examine the instant case to determine if appellant has
[ 444 Pa. Page 496]
met his burden of proof to have his guilty plea and the judgment of sentence vacated so that he might plead and be tried anew.
In Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481, citing McMann v. Richardson, 397 U.S. 759, and Parker v. North Carolina, 397 U.S. 790, we established three criteria which a defendant must meet before he can successfully attack a guilty plea on the basis of an alleged involuntary confession. We pertinently said (page 593): ". . . that a defendant must demonstrate all*fn2 of the following to successfully collaterally attack a plea of guilty on such grounds: (1) an involuntary pretrial confession (or presumably any other constitutionally infirm incriminating evidence); (2) that the guilty plea was primarily motivated by such evidence; and, (3) that defendant was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial." See also Commonwealth v. Brown, 443 Pa., supra.
We need only examine the third criterion to find that appellant has not met his burden of proof. Appellant had privately retained a member of the Bar, who by appellant's own testimony met with him three times prior to trial, and also spoke several times with appellant's parents prior to trial. His counsel also contacted several potential defense witnesses, including appellant's private family doctor in order to have him testify that appellant's mother had visited him several times about appellant's excessive drinking and other family problems. We cannot hold, after a searching examination of the record, that it was gross error on the part of counsel, Commonwealth v. Marsh, 440 Pa., supra (page 593), to permit appellant to enter a plea to murder generally. On the contrary, the record shows that counsel actively attempted to prepare a defense
[ 444 Pa. Page 497]
and that his advice to plead guilty was undoubtedly reasonable under the circumstances. See also Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349; Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477; Commonwealth v. Skipper, 440 Pa. 576, 271 A.2d 476.
Appellant further contends that he pleaded guilty to first-degree murder instead of murder generally, and therefore the plea was invalid. Appellant points to the opening statement of the prosecutor as being the full and complete understanding of his guilty plea.*fn3 While we agree that this opening statement of the prosecutor is not a technically correct statement of the law, we deem it to be harmless error when viewed in the totality of the circumstances of this case. The bill of indictment clearly states that "the defendant Stanley Moroz with his Counsel present entered a plea of guilty of murder generally." Moreover, the lower Court sat and heard testimony from both the Commonwealth and the defense before making a specific finding of guilty of murder in the first degree. The lower Court then heard further testimony before fixing the penalty of life imprisonment.
Appellant's final contention is that the Commonwealth's evidence established that appellant was completely intoxicated at the time of the commission of the
[ 444 Pa. Page 498]
felony-murder, and therefore he cannot be convicted of first-degree murder. This is not supported by the evidence.
The lower Court made a specific finding that the death of Frank Seibert occurred as a result of the blows inflicted upon him by appellant during the perpetration of the burglary.*fn4 There is ample evidence, aside from the appellant's detailed and extensive confession, to establish a burglary -- which in the law is a felony -- in connection with the murder, in order to justify a finding of a felony-murder and thus sustain a first-degree murder conviction.
For all of the above reasons, we find no merit in any of appellant's contentions.
Judgment of Sentence and Order affirmed.
Judgment of sentence and order affirmed.