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COMMONWEALTH v. TAYLOR (11/17/72)

decided: November 17, 1972.

COMMONWEALTH
v.
TAYLOR, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, No. 1131 of 1965, in case of Commonwealth of Pennsylvania v. Myles Taylor.

COUNSEL

J. Graham Sale, Jr. and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Carol Mary Los and Robert L. Eberhardt, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

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

Author: Pomeroy

[ 449 Pa. Page 346]

On June 9, 1965, appellant Myles Taylor, represented by court-appointed counsel, entered a plea of guilty to murder generally, the degree of guilt being subsequently fixed at murder in the second degree. Appellant made no post-trial motions and took no appeal.

On October 22, 1969, appellant filed a PCHA*fn1 petition, alleging numerous grounds for reversal of his conviction. At the hearing on the petition, these grounds narrowed to only two contentions: (1) that appellant's guilty plea was on incompetent advice of counsel and was not knowing and intelligent, and (2) that it was induced by a confession unconstitutionally obtained by police interrogators at a time when appellant was unrepresented by counsel.*fn2 The lower court

[ 449 Pa. Page 347]

    denied post-conviction relief after holding the hearing required by ยง 9 of the Act, and that denial is appealed to this Court. We affirm.

At the time of his arrest and the police interrogation which followed it, Myles Taylor was 15 years old and unrepresented by counsel. It is his contention here that either as a matter of law or under the "totality of circumstances" test of Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970), he could not be said to have waived his right to counsel under Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977 (1964), and that therefore his confession was obtained through constitutionally impermissible means.*fn3 Although this Court has in the past refused to erect a per se rule of incapacity to make such a waiver based solely on age, Commonwealth v. Darden, supra, Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971), the question of waiver of such rights has been troublesome. See,

[ 449 Pa. Page 348]

    e.g., Commonwealth v. Moses, supra, at 356 (Roberts, J., dissenting opinion). Appellant here, however, entered a guilty plea to murder generally on advice of his counsel. Because that guilty plea "is . . . [an] admission in open court that he committed the acts charged in the indictment," appellant's uncounselled confession will be unavailing to him unless he can, at the same time, avoid the counseled guilty plea. Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747 (1970); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967).

In Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970), we set out the concurrent requirements for attacking a guilty plea allegedly based on an unconstitutional confession. Appellant must demonstrate all of the following: (1) that the confession was unconstitutionally obtained; (2) that the confession was the primary motivation for the guilty plea; and (3) that the entry of the guilty plea was on incompetent advice of counsel. See also Commonwealth v. Moroz, 444 Pa. 493, 281 A.2d 842 (1971); McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 25 L. Ed. 2d 785 (1970). In a case of this sort, therefore, our initial inquiry "is directed to the reasonableness of counsel's assessment of his client's case and his advice to the client in light thereof, including advice as to the implications and consequences of entering a guilty plea." Commonwealth v. Ward, 442 Pa. 351, 354, 275 A.2d 92 (1971). Here we find that appellant falls well short of showing that counsel's advice as to pleading guilty was incompetent.

Myles Taylor was represented at the time his plea was entered by two counsel appointed by the court in January, 1965. The record of the post-conviction hearing shows ...


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