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COMMONWEALTH v. DENNIS (05/04/73)

decided: May 4, 1973.

COMMONWEALTH
v.
DENNIS, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, No. 442, in case of Commonwealth of Pennsylvania v. George Dennis.

COUNSEL

Samuel Kagle, for appellant.

Mary Rose Cunningham, James T. Ranney and Milton M. Stein, Assistant District Attorneys, 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. Chief Justice Jones. Mr. Justice Roberts and Mr. Justice Manderino concur in the result. Concurring Opinion by Mr. Justice Nix. Mr. Justice Roberts joins in this concurring opinion.

Author: Jones

[ 451 Pa. Page 341]

On May 12, 1969, the appellant, George Dennis, represented by counsel, entered a plea of guilty to murder

[ 451 Pa. Page 342]

    generally. Following a degree-of-guilt hearing at which the District Attorney certified to the court that the crime rose no higher than murder in the second degree, appellant was found guilty of that crime by the trial court and sentenced to a term of not less than six nor more than twenty years' imprisonment. No appeal was taken. On September 22, 1970, appellant filed a petition under the Post Conviction Hearing Act*fn1 (PCHA) alleging (1) that he was denied his appellate rights, (2) that the evidence introduced at the degree-of-guilt hearing was insufficient to raise the crime above voluntary manslaughter, (3) that his guilty plea was not knowingly or intelligently entered because it was based upon an involuntary confession and dereliction of counsel, and (4) that his trial counsel was incompetent. This is an appeal from the lower court's denial of relief following a hearing at which appellant was represented by appointed counsel.

Appellant's initial allegation that he was denied his appellate rights is not well founded. Although the information given appellant concerning his appellate rights was inadequate,*fn2 he was not prejudiced by any denial of the right to appeal. It is well-established that on direct appeal from a second degree murder conviction based on a guilty plea, a defendant can only attack the voluntariness of the plea, the validity of the sentence and the related question of whether he introduced evidence sufficient to reduce the killing to manslaughter. Since these issues can also be raised in a collateral attack a denial of a defendant's right to appeal is non-prejudicial where, as in this case, the defendant is afforded an opportunity for review in a collateral proceeding.

[ 451 Pa. Page 343296]

A.2d 823 (1972). Initially we note that appellant's confession was made knowingly and freely. He was advised of his constitutional rights as prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), when he was arrested, advised again when taken into the police station and advised a third time before he made his formal statement. Although the Miranda warnings had not been given immediately before his prior oral admission, this would not invalidate his subsequent formal statement. In Commonwealth v. Abrams, 443 Pa. 295, 299, 278 A.2d 902, 905 (1971), this Court held that the prosecution has no absolute duty to repeat the Miranda warnings at each successive stage of an interrogation. Here, the appellant was repeatedly informed of his constitutional rights and freely and intelligently chose to waive those rights. Even assuming that appellant's confession was constitutionally infirm, we do not conclude that his guilty plea was primarily motivated by his confession. It seems appellant pleaded guilty in order to avoid facing the eyewitness testimony which might have sufficed to convict appellant of first degree murder. Further, from a review of the record colloquy between appellant and the trial court, we are convinced that appellant knowingly, intelligently and voluntarily pleaded guilty.

We are also unable to find that appellant's guilty plea was based on the incompetent advice of counsel. The test for the competency of counsel's advice does not involve a retrospective consideration of whether the advice was right or wrong but rather whether the advice was within the range of competence normally required of criminal defense attorneys. McMann v. Richardson, 397 U.S. 759, 771 (1970). Our concern, therefore, is with the reasonableness of counsel's assessment of his client's case and his ...


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