The opinion of the court was delivered by: SNYDER
The Petitioner in this case, an inmate at the Correctional Institution at Pittsburgh, Pennsylvania, filed for a Writ of Habeas Corpus. Petitioner had entered a plea of guilty to a charge of murder on March 5, 1968, and was sentenced to a term of from ten to twenty years imprisonment by the Honorable Ralph H. Smith, Jr.
In support of his Petition, Mr. Chruscial alleges:
"Following the plea to murder, the Court held a hearing to determine the degree of guilt. During said hearing, I testified that I did not intend to shoot my 'wife', but that the killing was accidental. So the trial Court, after hearing my testimony, should have ordered the guilty plea withdrawn and a plea of not guilty entered."
As the grounds for his allegation that he is being held in custody unlawfully, Petitioner states the fact that his guilty plea was not knowingly and intelligently entered, because:
"I testified to a perfect alibi for a defense which the Trial Court should have rejected the plea of guilty. And the Trial Court heard testimony from a Robbery charge when he considered my degree of the murder charge."
At the filing of the Petition for Writ of Habeas Corpus, the Commonwealth filed a Motion to Dismiss the Petition contending:
"Relator raises only one issue in the instant petition: He claims his plea of guilty was not knowingly and intelligently entered because his testimony made out a defense that the killing was accidental, and under the authority of United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968), the trial court should have rejected his guilty plea."
After receipt of the Petition for Writ of Habeas Corpus this Court entered an Order on July 27, 1973, granting a Rule on the Respondent to show cause why a hearing should not be held, Rule returnable within twenty (20) days after service. It was further ordered that the District Attorney or his representative should file an answer to the allegation of the petition within twenty (20) days from the date of service of the Rule. In addition, it was ordered that after filing of the answer, the Clerk should obtain the state court records, including the records relating to Petitioner's plea of guilty, degree of guilt hearing and sentencing at 26 September Term 1967, Oyer and Terminer of Allegheny County, together with all papers relating to hearings and the court's opinion and the record of the appeal to the Supreme Court of Pennsylvania. It was pursuant to this Order that the Commonwealth's Motion to Dismiss the Petition was filed. The Clerk also furnished the Court with the records as set out in the above mentioned Order.
On September 4, 1973, Harry S. Swanger, Esquire, and Samuel Vitarro, Esquire, attorneys at this Bar entered their appearance on behalf of the Petitioner, Edward Chruscial. After the receipt of the Commonwealth's Motion, a hearing was ordered on the matter for September 4, 1973 but on request of counsel for the Petitioner, consented to by the Petitioner, the hearing was continued until October 1, 1973.
A review of the records in this case shows that Petitioner was indicted at Nos. 26 and 27 of September Term 1967 in the Courts of Oyer and Terminer of Allegheny County, Pennsylvania. At No. 26, there were counts charging murder and voluntary manslaughter, and No. 27 contained a single count of involuntary manslaughter. He was represented by Thomas Harper, Esquire, of the Public Defender's Office who is presently a Judge of the Court of Common Pleas of Allegheny County. During this representation, he waived his right to trial by jury and entered a plea of guilty. On March 4, 1968, testimony was taken before the Honorable Ralph H. Smith, Jr., for the purpose of determining the degree of guilt. Judge Smith set the degree of guilt at murder in the second degree on March 5, 1968 and imposed a term of imprisonment of not less than ten nor more than twenty years. No post trial motions were filed nor was an appeal taken.
On March 16, 1970, Petitioner filed a petition pursuant to the Post Conviction Hearing Act alleging he was entitled to relief because of the "abridgement of a right guaranteed by the constitution or laws of this state or by the constitution or laws of the United States, including a right that was not recognized as existing at the time ...