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COMMONWEALTH v. MUSSER (12/13/71)

decided: December 13, 1971.

COMMONWEALTH
v.
MUSSER, APPELLANT



Appeal from order of Court of Common Pleas of Lancaster County, Sept. T., 1967, Nos. 186, 187A, and 187B, in case of Commonwealth of Pennsylvania v. Gerald Musser.

COUNSEL

James S. Sorrentino, Assistant Public Defender, for appellant.

D. Richard Eckman, Assistant District Attorney, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 220 Pa. Super. Page 270]

Appellant, Gerald Musser, plead guilty to charges of conspiracy, assault with intent to kill, and robbery in November 1967. He now asserts that his plea was invalid because it was coerced by the treatment he received while awaiting trial in the Lancaster County Prison.*fn1

Appellant alleged in his post-conviction petition and at the hearing before Judge W. Hensel Brown that during the three weeks*fn2 following his arrest he was held in a maximum security cell, he was denied commissary privileges, he was not allowed to eat with

[ 220 Pa. Super. Page 271]

    the other prisoners, his exercise was limited to fifteen minutes per day within the cell block, he had no table on which to eat or write, he was issued only one shirt and trousers to wear and sleep in, he was not permitted to shower, and a 100 watt bulb burned constantly in his cell 24 hours per day. He further testified that even though some of these conditions were abated following the filing of a petition for writ of habeas corpus in the Common Pleas Court and an application for relief in Federal District Court, his guilty plea was a direct result of his desire to escape the conditions outlined above.

Appellant's pre-trial counsel, testifying for the Commonwealth, stated that, although appellant had complained several times about the conditions of his incarceration, had said on a few occasions that he would do anything to get out of the County prison, and had to be dissuaded from leaving his name on the guilty plea list several times, he was convinced that appellant's plea was voluntary. He based his determination on appellant's statement that he wanted to get the uncertainty over with and make the Constitution his defense, and on appellant's insistence on entering his plea despite counsel's advice that it was not the appropriate time to plead guilty and despite his assurance that he would take steps to have appellant moved to another institution if his plea was motivated by the conditions under which he was being incarcerated.

The prison warden testified that he ordered that appellant be placed in a maximum security cell because of his past record, because of the seriousness of the charges on which he was being held, and because certain of appellant's accomplices had threatened to attempt to escape. He further stated that although some of appellant's complaints were valid, in general appellant received treatment on a par with the other

[ 220 Pa. Super. Page 272]

    pre-trial inmates, and that improvements had been made in appellant's custodial conditions to the extent that the age of the ...


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