Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1949, Nos. 280 to 307, inclusive, in case of Commonwealth of Pennsylvania v. David Morrison.
John L. Rolfe and Francis S. Wright, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Richard D. Steel and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J. Wright, P. J., would affirm on the opinion of Judge Doty. Concurring and Dissenting Opinion by Hoffman, J.
[ 222 Pa. Super. Page 305]
In 1949 defendant was indicted for 31 armed robberies. At arraignment he pleaded guilty, without counsel, to 12 of the bills (bills Nos. 278, 279, 282, 284, 297, 300, 302, 303, 304, 305, 307, and 308 of March Sessions, 1949),*fn1 and he pleaded not guilty to the remainder. Before proceeding with trial on the remaining bills, the court directed defendant to consult with a public defender who happened to be in the courtroom. Following the consultation, the defender indicated that defendant desired to change his pleas on the remaining
[ 222 Pa. Super. Page 306]
bills to guilty. Eyewitnesses, detectives, and the defendant were then called for the purpose of detailing the particulars of each robbery, including the robberies to which defendant originally pleaded guilty. Throughout these proceedings defendant was represented by the public defender. At the conclusion of the evidence the court sentenced defendant to consecutive terms of 1 to 2 years each on 28 of the 31 bills.
Alleging denial of counsel and nonvoluntariness of his guilty pleas, defendant instituted post-conviction proceedings, but was denied relief by the court below following two hearings. He now appeals to us and we reverse the lower court with respect to the guilty pleas entered by defendant before consulting with counsel.
Preliminarily, we note that the pleas entered after consultation with counsel are valid. Defendant was represented by counsel, there was a prima facie showing of his guilt, he had earlier confessed to all the robberies with which he was charged as well as approximately 40 others with which he was not charged, he had a prior criminal record demonstrating that he had some familiarity with the criminal process, and his trial counsel testified that he was certain he would not have permitted defendant to plead guilty had he not been convinced of his guilt. The only testimony adduced to show that the pleas were not voluntary was the testimony of the defendant. But this testimony the hearing judge apparently discredited. We cannot say that in so doing the judge was in error, particularly in view of the discrepancies between the testimony given by the defendant at the first hearing and the facts disclosed in the subsequently-obtained transcript of defendant's trial. In view of all these circumstances we conclude that defendant, in asserting that his 1949 pleas entered with counsel were nonvoluntary, has not sustained the burden of proof imposed by Commonwealth v. McBride,
[ 222 Pa. Super. Page 307440]
Pa. 81, 269 A.2d 737 (1970), cert. denied, 402 U.S. 946 (1971). Accordingly, those pleas must be considered valid.
A different situation obtains, however, with respect to the pleas entered by defendant before consulting with counsel. The law is clear that the right-to-counsel rule of Gideon v. Wainwright, 372 U.S. 335 (1963), applies retroactively, Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964), to guilty pleas regardless of whether defendant has been prejudiced, Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). Unless waived, a lack of counsel on entry of a guilty plea is a denial of due process; waiver of counsel may not be found from a mere plea of guilty, from an absence of counsel, from a failure to request counsel, nor from a silent record. Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964). Where, as in the present case, no allegation of waiver has been made by the ...