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COMMONWEALTH v. MARSH (06/28/72)

decided: June 28, 1972.

COMMONWEALTH
v.
MARSH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Erie County, No. 413 of 1966, in case of Commonwealth of Pennsylvania v. Vernon Carl Marsh.

COUNSEL

James D. McDonald, Jr., with him Quinn, Gent, Buseck & Leemhuis, for appellant.

Charles D. Agresti, Assistant District Attorney, with him R. Gordon Kennedy, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice Manderino join in this concurring opinion.

Author: O'brien

[ 448 Pa. Page 293]

On November 15, 1966, appellant, Vernon Marsh, entered a general plea of guilty to an indictment charging him with the slaying of one Bruno C. Roehrl in Harborcreek Township, Erie County, Pennsylvania, on February 10, 1965. After testimony before the court en banc, he was adjudged guilty of first-degree murder and sentenced to life imprisonment. No appeal from the judgment was filed at that time. In November, 1967, after he had filed a post-conviction petition,

[ 448 Pa. Page 294]

    the court permitted appellant to file post-trial motions nunc pro tunc. Appellant then alleged that his plea of guilty should be invalidated because it was primarily induced or motivated by the existence of incriminating evidence unconstitutionally obtained. On appeal from the denial of these motions, we held that since appellant's plea was made with the advice of counsel, and he did not allege that counsel's advice was incompetent, his attack on the validity of his plea must fail. Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970). However, we also found that constitutionally proscribed evidence was admitted during the degree-of-guilt hearing and, therefore, vacated the judgment and remanded the case for another degree-of-guilt hearing at which such evidence would not be admitted.

On remand, upon motion of appellant's counsel, the court below agreed on May 21, 1971, to suppress the testimony given by appellant at the previous degree-of-guilt hearing, because that testimony might have been impelled by the Commonwealth's previous use of the tainted evidence, citing Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008 (1968). A hearing to determine the degree of guilt was then set for June 18, 1971.

During the period between the May 21 suppression order and the June 18 hearing date, there were frequent negotiations between appellant's attorneys and the office of the District Attorney of Erie County. Those negotiations culminated in an agreement between opposing counsel that the Commonwealth would stipulate that the degree of guilt rose no higher than second degree in exchange for an agreement on the part of the appellant to forego any further appeals attempting to invalidate the existing guilty plea. The court refused to accept the agreement and, after the granting of a continuance to permit the Commonwealth to obtain all of its witnesses, the second degree-of-guilt hearing was held on July 28, 1971.

[ 448 Pa. Page 295]

This hearing resulted in a finding that the appellant was guilty of murder in the first degree. After denial of his post-trial motions and the imposition of a sentence of life imprisonment, appellant filed this appeal. On appeal, the appellant first alleges that the court should not have refused the stipulation that appellant's guilt did not rise above second-degree murder and that the Commonwealth should not be allowed to disavow that agreement. We have repeatedly recognized that plea bargaining is an appropriate method of disposing of criminal cases. Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Com. ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). However, in those cases, we have made it clear that, although the opposing attorneys are bound by the agreement, the court is not bound to accept it and, if the court makes that fact clear to a defendant, the defendant cannot attack a plea made after the disclosure.

In the instant case, the appellant did not plead guilty as the result of an agreement reached with the Commonwealth. Instead, his guilty plea was made prior to the agreement and we had already held that that plea could not be withdrawn. Commonwealth v. Marsh, supra. The only agreement made by the appellant was that he would make no further appellate or collateral attacks on the validity of his plea if the Commonwealth would stipulate that his degree of guilt rose no higher than second-degree murder. The court was not bound to ...


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