decided: November 11, 1971.
Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1962, No. 1074, in case of Commonwealth of Pennsylvania v. Francis Stroinski.
David Rudovsky and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
James T. Owens and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard D. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Wright, P. J., would affirm on the opinion of the court below.
[ 220 Pa. Super. Page 128]
Appellant, Francis Stroinski, pleaded guilty in 1963 to charges of larceny and receiving stolen goods. A sentence of six months to four years was imposed by the Honorable Edward J. Griffiths, of the Court of Common Pleas of Philadelphia. In his petition for post-conviction relief, appellant requested a new trial, alleging that his guilty plea was involuntarily entered. After an evidentiary hearing, the petition was denied by the Honorable Ethan Allen Doty.*fn1 This appeal followed.
[ 220 Pa. Super. Page 129]
Immediately prior to his arrest on October 23, 1961, appellant was seen driving in the vicinity of Columbia and Girard Avenue in Philadelphia by two detectives who were cruising in that area. The detectives followed appellant as he proceeded toward the Benjamin Franklin Bridge, offering no better reason for their actions than that they just "decided to trail him". After appellant reached the New Jersey side of the bridge, he was stopped by the detectives and his car was searched without a search warrant and without his consent.*fn2 The detectives testified that they stopped appellant because he had been exceeding the speed limit on a Philadelphia street; however, they failed to issue a citation for any traffic violation. The detectives found a credit card, previously reported stolen, inside a suitcase in the trunk of appellant's car.
On the basis of the events surrounding the search of his car and seizure of the credit card, appellant filed a motion to suppress the evidence. At this time, he was represented by the Voluntary Defender Association. When the motion was denied, counsel, who testified at the post-conviction hearing, was of the opinion that appellant's only compelling defense had been undermined; further, he had been advised at a staff conference that the likelihood of reversal on appeal did not warrant the expenditure of scarce Defender Association funds
[ 220 Pa. Super. Page 130]
on appellant's case. With these considerations in mind, counsel advised appellant to enter a plea of guilty. Counsel never discussed with appellant his prospects on appeal, or the effect of a guilty plea on that option. Reluctantly,*fn3 appellant followed the recommendation of his attorney and entered a plea of guilty.
Under federal and Pennsylvania law, a criminal defendant has a right to appointed counsel at every "critical stage" of a criminal proceeding and at every direct appeal from a judgment of sentence which he has as a matter of right. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964); Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 222 A.2d 427 (1966). This right has been found to be so fundamental as to warrant retroactive application. Smith v. Crouse, 378 U.S. 584, 84 S. Ct. 1929 (1964); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965). Thus, absent knowledgeable waiver, appellant had a right to appeal from any sentence after trial and was entitled to have counsel appointed for that purpose.
Certainly, a defendant may be bound by a guilty plea made on the recommendation of his counsel, who had competently weighed the alternatives available. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458 (1970); Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463 (1970); Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967). However, here, counsel testified that he would not have recommended a guilty plea were it not for the staff determination that the scarcity of Defender Association funds precluded pursuing an appeal in appellant's behalf. Thus, appellant was
[ 220 Pa. Super. Page 131]
impelled to plead guilty in part by the unavailability of counsel for his appeal to which he has since that time been found to have been constitutionally entitled.*fn4
Moreover, appellant was advised by neither counsel nor the sentencing judge that by pleading guilty he was waiving all objections to the search and seizure which resulted in his indictment. Waiver of rights cannot be presumed, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); and where the judge's pre-sentencing interview failed to elicit sufficient evidence that the defendant was aware of the material legal implications of his plea, we may not assume such knowledge on the defendant's part, especially where counsel has testified that he did not discuss the prospects of appeal with his client at all. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760; Commonwealth ex rel. McCray v. Rundle, supra, at p. 70.*fn5
Finally, there is uncontested evidence in the record that the district attorney exercised the threat of the use of his power to reindict on charges which appellant's attorney had had quashed to persuade appellant to enter a guilty plea. Such influence is impermissible and infirms a plea which it has provoked. Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 513
[ 220 Pa. Super. Page 132]
(1962); Commonwealth v. Patterson, 432 Pa. 76, 79, 247 A.2d 218.
These factors precluded appellant's plea from being either voluntary or knowledgeable. Judgment of sentence is vacated and a new trial is granted to appellant.
Judgment of sentence vacated and new trial ordered.