Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1951, No. 640, in case of Commonwealth of Pennsylvania v. William Sampson.
E. A. Weis, Assistant Public Defender, with him John W. Packel, Assistant Public Defender, and Vincent J. Ziccardi, Defender, for appellant.
James D. Crawford, Deputy District Attorney, with him T. Michael Mather and Milton M. Stein, Assistant District Attorneys, 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. Justice Jones. Mr. Justice Eagen concurs in the result. Mr. Justice Cohen took no part in the decision of this case. Concurring Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this concurring opinion.
On September 30, 1953, appellant entered a plea of guilty to murder generally. Found guilty of first degree murder by a court en banc, he was sentenced to life imprisonment. There was no motion for a new trial and no appeal from the original sentence. Seven
years later appellant filed a petition for writ of habeas corpus which was denied on the narrow ground that habeas corpus cannot be employed as a substitute for an appeal. E.g., Com. ex rel. Johnson v. Myers, 402 Pa. 451, 167 A.2d 295 (1961), cert. denied, 366 U.S. 921 (1961). On appeal we similarly affirmed the denial of relief on this procedural point. Com. ex rel. Sampson v. Banmiller, 406 Pa. 147, 176 A.2d 430 (1962). In 1968, appellant sought relief under the provisions of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1971), by alleging, inter alia, a violation of Douglas v. California, 372 U.S. 352 (1963). Following an evidentiary hearing, appellant was granted leave to file post-trial motions as though timely filed. These motions were filed, argued and denied; this appeal followed.
The evidence presented at the degree-of-guilt hearing reveals that appellant and two co-defendants conspired to rob a taxicab. Although there is some dispute, the evidence overwhelmingly demonstrates appellant's knowledge of the fact that one of his accomplices was armed with an automatic pistol. The three conspirators then engaged a taxicab, with appellant and another seated in the back seat while the actual slayer sat on the passenger's side in the front seat. After the cab driver had driven several miles, the "triggerman" brandished his weapon and ordered the cab driver to stop. Seconds later the cab driver was fatally wounded. Although appellant was not the actual killer, each individual was charged with murder under the felony murder rule.
In our view, appellant's principal contention is that his guilty plea was unintelligently entered since it was accompanied by testimony establishing a complete defense and should have been rejected. Despite an evidentiary
conflict, there is substantial evidence, if believed, that both appellant and his fellow conspirators in the back seat fled the cab immediately after the actual assailant ordered the cab driver to halt; appellant was allegedly thirty-five to fifty feet from the taxicab when he heard the shot. Before any examination of his testimony, we must first decide whether any exculpatory evidence would vitiate the guilty plea.
In North Carolina v. Alford, 400 U.S. 25 (1970), the Supreme Court was faced with the issue whether a guilty plea may be accepted when accompanied by the accused's testimony that he had not shot the victim. This question was answered in the affirmative: "while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." 400 U.S. at 37. We had reached the same conclusion almost two years earlier in Com. v. Cottrell, 433 Pa. 177, 249 A.2d 294 (1969). However, this language must be read in conjunction with Com. v. Roundtree, 440 Pa. 199, 202, 269 A.2d 709, 711 (1970): "We think it is logical and correct that if a defendant pleads guilty to a criminal charge, and in the next breath contravenes the plea by asserting facts which, if true, would establish that he is not guilty, then his guilty plea is of no effect ...