decided: October 4, 1972.
Appeal from judgments of sentence of Court of Common Pleas of Perry County, Feb. T., 1968, Nos. 2 and 3, in case of Commonwealth of Pennsylvania v. Charles E. Hollenbaugh.
N. A. Patterson, with him Keith B. Qugley, for appellant.
Clyde R. Bomgardner, District Attorney, with him Gerald K. Morrison, Assistant District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this opinion.
[ 449 Pa. Page 7]
On December 27, 1968, the appellant, Charles E. Hollenbaugh, pleaded guilty to two separate indictments for murder, one pertaining to the killing of Richard Larry Bitting, the other to the killing of Linda Fisher. A panel of three judges subsequently determined that both crimes were murder in the first degree, and appellant was sentenced to life imprisonment in each case, the sentences to run concurrently. This appeal comes to us under the Appellate Court Jurisdiction
[ 449 Pa. Page 8]
Act of 1970, July 31, 1970, P. L. 673, art. II, § 202(1), 17 P.S. § 211.202(1).*fn1 We affirm.
In the early morning hours of March 23, 1968, appellant walked into the State Police Substation at Duncannon, Pennsylvania and announced to the officer on desk duty, "I give myself up. I just killed two people." That assertion was soon verified by the discovery of the bodies of Linda Fisher and Richard Bitting in a station wagon parked behind a nearby lounge. During the course of the morning at the police station, appellant was warned of his constitutional rights on several occasions, twice in writing; he nevertheless gave a written statement of the events surrounding the crimes. He further informed police that the murder weapon was an 8mm. rifle lying on the back seat of his car, then parked outside the station. Accompanied by appellant's father and brother, a police officer retrieved the weapon and unexploded ammunition.
Appellant's statement and the evidence introduced at the degree-of-guilt hearing disclosed the following:
On the evening of Friday, the 22nd of March, 1968, Charles Hollenbaugh and his then girl friend, Linda Motter, were making the rounds of several night spots in the Borough of Duncannon. At Barney's Cafe, Hollenbaugh encountered Linda Fisher in the company of Richard Bitting, a man the appellant had a short time previously threatened with death should he persist in his attentions toward Linda Fisher. It appears that
[ 449 Pa. Page 9]
the appellant Hollenbaugh was at that precise moment midway between girl friends: he had been carrying on an illicit relationship with Linda Fisher and had heard through rumor that she was with child, and he had only recently entered into a similar relationship with Linda Motter, his companion of the evening. After Barney's Cafe closed for the evening, Hollenbaugh and Linda Motter drove to her parents' home and there passed the hours before daylight in his parked car. After taking leave of Miss Motter, appellant drove back to Barney's to ascertain if his other paramour, Linda Fisher, was displaying the fidelity of which he himself was apparently incapable. She was not.
Hollenbaugh, enraged by this betrayal, drove to his home, obtained his rifle and ammunition, returned to the parking lot at the rear of Barney's, and there discharged the weapon six times into the car in which Richard Bitting and Linda Fisher were still sitting. The medical evidence revealed that both died instantly.
Appellant argues here that (1) the prosecution was in possession of illegally obtained evidence (the confession, the rifle, and the ammunition), (2) that the guilty pleas were motivated by fear of this evidence, and (3) that the pleas were entered on ineffective advice of counsel. In Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970), this Court held that to succeed on his chosen line of attack, appellant must demonstrate the existence of all the above three factors. See also Commonwealth v. Ward, 442 Pa. 351, 275 A.2d 92 (1971); Commonwealth v. Moroz, 444 Pa. 493, 281 A.2d 842 (1971).
[ 449 Pa. Page 10]
Our analysis as a matter of course begins with the guilty plea, appellant's understanding of its nature and the competence of counsel in advising it. Commonwealth v. Ward, supra. As appellant's pleas were entered after our decision in Commonwealth ex rel. West Page 10} v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), the record must and does contain a searching examination of appellant's understanding of the nature of a guilty plea. That colloquy, set out in full in the margin,*fn2 took
[ 449 Pa. Page 11]
place in two stages, one at the time of entry of the pleas and one at the conclusion of the degree-of-guilt hearing. We are of the opinion that both of these sets
[ 449 Pa. Page 12]
of inquiries show that the appellant was well aware of the nature and consequences of his plea.
[ 449 Pa. Page 13]
Prior to trial appellant's attorney filed a motion to suppress the confession and the rifle and ammunition in the hands of the prosecutor on the ground that the confession was obtained in violation of appellant's rights against self-incrimination under Miranda v. Arizona, 384 U.S. 426, 16 L. Ed. 2d 694 (1966), and that the evidence was seized from appellant's car without a warrant and not incident to an arrest. At the hearing on the motion, it appeared that appellant had been repeatedly warned of his Miranda rights, both orally and in writing, and that after informing the police of the location of the murder weapon, appellant had affirmatively indicated that he consented to a search of his car. The suppression court denied the motion. Subsequently, appellant's counsel recommended to his client that a guilty plea was the best course of action.
In the face of evidence as damning as that in the case at bar, it cannot be said to be unreasonable for counsel to advise his client to plead guilty. Appellant's attorney had done what he could to suppress the confession and the gun; the court's resolution of the factual issues against appellant -- that he had been warned and that he had consented to the search -- was not clearly erroneous. In light of the prospective use of this evidence at trial, counsel's recommendation to plead guilty rather than stand trial was surely a reasonable choice among the available alternatives. While there was, to be sure, a risk that the court would find first degree murder at the degree of guilt hearing, it appeared certain that if the defendant went to trial before a jury, a conviction of voluntary manslaughter would be the least possible verdict; acquittal was out of the question, and the death penalty was a distinct possibility. Since voluntary manslaughter could also be sought before the court in a degree of guilt hearing following a plea of guilty to murder generally, it was sound strategy to attempt to eliminate the risk of a
[ 449 Pa. Page 14]
death penalty while at the same time preserving the possibility of obtaining a conviction of the least serious offense.*fn3 We have no hesitance in concluding that appellant was not deprived of the effective assistance of counsel. Commonwealth v. Ward, supra; Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The guilty pleas therefore must stand.
The judgments of sentence are affirmed.
Judgments of sentence affirmed.
Concurring Opinion by Mr. Justice Roberts:
I join the majority but wish to express my view on an issue mentioned but not discussed by the majority. A review of the colloquy between the trial court and appellant indicates that appellant's plea of guilty to murder generally rested to a "significant degree" on a plea bargain in which the district attorney promised to recommend a sentence of life imprisonment. See Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971). Notwithstanding this plea bargain neither the district attorney nor defense counsel informed the trial court of the agreement, and both counsel stood mute during the degree of guilt hearing. If this was so, the failure by both the district attorney and defense counsel to inform the court of the existence of the plea bargain was in clear violation of their respective professional obligations.*fn1
The controlling decisional law and authorities*fn2 are clear that once a district attorney enters into a plea
[ 449 Pa. Page 15]
bargain he has the professional responsibility to perform his part of the bargain. See e.g., Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495 (1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); see also United States ex rel. Culbreath v. Rundle, F. 2d (3d Cir. 1972). Here, however, appellant did in fact receive a sentence of life imprisonment despite the failure of either the district attorney or defense counsel to inform the court of the plea bargain. My concurrence in no way condones the district attorney's or defense counsel's failure to satisfy their professional responsibilities by informing the court of the existence of the plea bargain.