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COMMONWEALTH v. MCNEILL (05/23/73)

decided: May 23, 1973.

COMMONWEALTH
v.
MCNEILL, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia. March T., 1972, Nos. 39 and 40, in case of Commonwealth of Pennsylvania v. Jerry McNeill.

COUNSEL

Samson B. Bernstein, with him Bernstein & Gembala, for appellant.

Peter J. Smith, Assistant District Attorney, with him 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 and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Nix took no part in the consideration or decision of this case.

Author: Jones

[ 453 Pa. Page 103]

On September 12, 1972, Jerry McNeill, appellant, represented by counsel, pled guilty to the charge of murder generally and aggravated assault and battery. Prior to acceptance of the plea by the lower court, defense counsel and the Assistant District Attorney conducted an extensive on-the-record colloquy with appellant. The court, in the presence of the appellant, was advised that the plea was negotiated. In return for the plea, the Commonwealth certified that the charge of murder rose no higher than murder in the second degree and recommended a prison term of seven and one-half to fifteen years for the murder charge and a concurrent sentence on the aggravated assault and battery charge. On October 10, 1972, appellant appeared before the lower court for sentencing. The terms of the plea bargain were again stated. The court then imposed a sentence of six and a half to fifteen years on the murder charge and one to three years on the assault and battery charge to run concurrently. This appeal followed.

The prosecution arose out of the fatal shooting of Leon Harvey (decedent) and the injury by shooting of Mrs. Mary Dew at approximately 1:15 a.m. on January 4, 1972, at Mrs. Dew's home in Philadelphia. According to Mrs. Dew, appellant was a former boyfriend who kept coming to her home. On this particular evening she was in the second floor front bedroom with decedent when appellant entered the house on the first

[ 453 Pa. Page 104]

    floor. Hearing someone coming in, she went to her son's room. Appellant walked by this room heading for the front bedroom. Mrs. Dew then heard appellant say to the decedent, "Who are you, who are you?" Decedent replied by asking the same question. Mrs. Dew heard shots and ran into the front bedroom screaming, where she was shot in the arm by appellant. She then ran out of the house and last saw appellant walking down the street.

Appellant's statement to the police was that he entered the home and heard noises as he walked up the steps to the second floor. He then went downstairs and got a hand gun that he had hidden in between the cushions on the sofa. He admitted shooting the decedent but did not remember shooting Mrs. Dew.

It is well established that where a defendant pleads guilty and is convicted of murder in the second degree he waives his right to challenge anything but the voluntariness of his plea and the legality of his sentence. See, e.g., Commonwealth v. Zanine, 444 Pa. 361, 282 A.2d 367 (1971); Commonwealth v. Dillinger, 440 Pa. 336, 269 A.2d 505 (1970). The legality of appellant's sentence is not at issue and, therefore, our only inquiry is as to the voluntariness of his plea. Appellant contends that his guilty plea was not voluntarily, knowingly and intelligently made because of his illiteracy and because the colloquy at the time of the plea did not include a specific reference to the maximum sentence that could have been imposed.

Before accepting a guilty plea a court, by conducting an on-the-record colloquy of the defendant, must determine whether the plea is voluntarily and knowingly made. Boykin v. Alabama, 395 U.S. 238 (1969); Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973); Commonwealth v. Hollenbaugh, 449 Pa. 6, 295 A.2d 78 ...


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