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COMMONWEALTH v. WHITING (11/17/72)

decided: November 17, 1972.

COMMONWEALTH
v.
WHITING, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1962, No. 941, in case of Commonwealth of Pennsylvania v. James Whiting.

COUNSEL

Lee Mandell, and Charleston & Fenerty, for appellant.

Peter J. Smith 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.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Manderino concurs in the result.

Author: Nix

[ 449 Pa. Page 277]

In June, 1963 the appellant entered a plea of guilty to murder generally, with a certification that the crime did not rise higher than second degree murder. The attorney for the Commonwealth noted his intention to proceed on an averment of a prior conviction of second degree murder.*fn1 A sentence of life imprisonment was imposed and no appeal was taken. On August 5, 1968, the appellant filed a petition under the Post Conviction Hearing Act*fn2 which was denied after a counseled hearing on September 30, 1970. We granted the appellant, on July 26, 1971, the right to appeal from the post-conviction determination, nunc pro tunc. Hence this appeal.

Appellant contends that his guilty plea was not voluntarily and intelligently entered; that he did not receive effective representation of counsel; that a statement was obtained in violation of his constitutional rights; and that constitutionally prohibited testimony was entered into evidence against him.

[ 449 Pa. Page 278]

The appellant was arrested on November 11, 1962 and charged with the murder of the decedent, Evelyn Griffin. The post-mortem examination revealed that the cause of death had been multiple stab wounds including two which penetrated the heart. Mrs. Rucker testified that on November 11, 1962 at approximately five or six p.m., while in her home at 1922 W. Paige Street, she heard the decedent scream, "Mrs. Rucker, help me please". After running to her front door, she stated that she saw the appellant on the pavement, stabbing the decedent in the chest. The knife was subsequently found on the highway in front of 1918 Paige Street and was determined to contain human bloodstains. Upon his arrest, the appellant admitted the stabbing to the arresting officer. Later, during his confinement, he attempted to hang himself. At the trial, appellant testified that he had no memory of the stabbing incident or the circumstances that led up to it. The defense also introduced into evidence the records of the Philadelphia General Hospital which showed that the appellant had been admitted on November 12, 1962 and was discharged one month later. The initial diagnosis was "possible psychosis". The diagnosis upon discharge was "no psychosis evident".

The first contention of the appellant is that the entry of the plea was not voluntary and intelligent in that he had not been advised of his right to be tried by jury; that he had not been advised of the effect of the averment of the prior conviction; and that he had not been informed that the entry of a plea substantially limited his right to appeal. Where a defendant enters a plea of guilty in a case tried prior to Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), and the record is silent as to what transpired regarding the entry of the plea, the burden of proving that the plea was involuntary and unintelligent, rests

[ 449 Pa. Page 279]

    upon the defendant. Commonwealth v. Waters, 445 Pa. 534, 285 A.2d 192 (1971); Commonwealth v. Stromberg, 440 Pa. 168, 269 A.2d 741 (1970); Commonwealth v. Duncan, 437 Pa. 319, 263 A.2d 345 (1970); Commonwealth v. Emerick, 434 Pa. 256, 252 A.2d 365 (1969). A reading of the record of the post-conviction hearing persuades us that this objection lacks merit and does not require a detailed analysis to dispose of the issue. The findings of the court below are not to be disturbed unless they have no support in the record. Commonwealth v. Young, 433 Pa. 146, 249 A.2d 559 (1969). During the post-conviction hearing the trial attorney for appellant contradicted his former client and asserted that he did advise him prior to the entry of the plea both as to his right to trial by jury and the mandatory life sentence that was required by Section 701. The hearing court who viewed the witnesses accepted counsel's version.

Although the Commonwealth admits that appellant was not advised of his appellate rights at the time of the entry of the plea this record is void of any indication that the appellant was prejudiced. Assuming arguendo, that the appellant is correct in his assertion that he was unaware that the entry of a plea would substantially limit his appellate remedies he has failed to suggest ...


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