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COMMONWEALTH v. RAKUS (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
RAKUS, APPELLANT



Appeal from order of Court of Common Pleas of Luzerne County, Oct. T., 1965, No. 841, in case of Commonwealth of Pennsylvania v. Frank Rakus.

COUNSEL

Peter J. Webby, Public Defender, for appellant.

Mary G. Cooper, Assistant District Attorney, with her Charles D. Lemmond, Jr., First Assistant District Attorney, and Blythe H. Evans, Jr., District Attorney, for Commonwealth, appellee.

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

Author: O'brien

[ 445 Pa. Page 510]

On April 1, 1950, after the Commonwealth had rested its case against him for the robbery-murder of the owner of a jewelry store, appellant, Frank Rakus, pled guilty to the charge of murder generally. He was found guilty of murder in the first degree and sentenced to life imprisonment on April 19, 1950.

Appellant filed a petition for a writ of habeas corpus in 1965. It was denied on February 3, 1966, but on appeal we vacated that order and remanded the record to the court below for an evidentiary hearing to determine whether appellant's guilty plea was knowingly and voluntarily made in accordance with the precepts of Commonwealth v. Patterson, 432 Pa. 76, 247 A.2d 218 (1968). Com. ex rel. Rakus v. Maroney, 435 Pa. 587, 257 A.2d 250 (1969).

A hearing was held on June 5, and June 9, 1970, and after oral argument, the court found that appellant's plea of guilty was knowingly and voluntarily made. This appeal followed.

At the evidentiary hearing, the testimony indicated that appellant's trial counsel had based their trial strategy

[ 445 Pa. Page 511]

    on a challenge to the admissibility of appellant's statement to the police and the admissibility of the murder weapon which was found as a direct result of that statement. Appellant's statement to the police had not been made until he had been detained for a period of six days following his arrest and counsel had hoped that, on the basis of the then-recent United States Supreme Court decision in Turner v. Pennsylvania, 338 U.S. 62 (1949), such statement would be inadmissible at trial. They further hoped that as the product of an inadmissible statement, the gun would also be inadmissible. Malinski v. New York, 324 U.S. 401, 89 L. Ed. 1029 (1945).

The Commonwealth, although not formally introducing appellant's unsigned statement into evidence, did introduce the gun into evidence along with testimony of various police officers as to how appellant had led them to where the gun was hidden. The introduction of the gun, when considered along with evidence of appellant's previous threats to rob the jewelry store in question; evidence that broken watch crystals found at the scene of the crime matched the watch appellant was wearing at the time of his arrest; and evidence that another watch identified by the victim's family was found in a sewertrap in appellant's place of residence fully justified the fears on the part of appellant's trial counsel that appellant faced the likelihood of a death penalty if the case went to the jury.

Consequently, appellant's primary trial counsel, who is no longer living, began efforts to persuade appellant to plead guilty. According to the testimony of the surviving co-counsel, such efforts originally met with difficulty because appellant continued to protest his innocence. Finally, after two previous changes of mind on the part of appellant, ...


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