he sought post-conviction relief in the state courts.
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 of the trial if the constitution requires retrospective application of that right".
In this Petition, the facts given in support of the alleged error were as follows:
1. "That petitioner was not informed, by the trial court nor trial counsel of his right to court-appointed appellate counsel to take his appeal to the appellate courts! Nor did petitioner have any personal knowledge of the existence of said constitutional right to appeal. Please see Title 12 P.S. Section 1136."
2. "Petitioner also at this time wishes to invoke the Doctrines of Estopel."
3. "The notes of my trial shows that I was not informed of any rights had either been exercised or waived. I rely fully upon those notes."
4. "The issues which I have raised in the petition have not been finally litigated or waived because: They have just been brought to my attention and are therefore being raised for the first time." (Sic, errors in original document)
At the post-conviction hearing before Judge Smith, in addition to other matters raised in this petition, the Court permitted counsel for Petitioner to raise the issues of involuntariness of the guilty plea and ineffective assistance of counsel. Thereafter, on January 29, 1971, Judge Smith filed his Opinion and Order denying Petitioner the post-conviction relief he had sought but granting him the right to file an appeal from judgment of sentence nunc pro tunc.
An appeal was taken to the Supreme Court of Pennsylvania challenging the validity of the guilty plea on the claim that it should have been rejected by the court, because it was accompanied by testimony by the Petitioner during the hearing to determine the degree of guilt which constituted a complete defense to the charge. In the Opinion as filed (reported at Commonwealth v. Chruscial, 447 Pa. 17, 288 A.2d 521 (1972)) the Supreme Court affirmed the conviction holding that the testimony of the Petitioner, that he pointed a gun at the victim only to scare her and that the gun went off when it was hit by the victim, did not establish an excusable homicide or homicide by misadventure, and, therefore, supported the guilty plea.
The Petitioner in this case relies on United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968). We believe this reliance on the Brierley case is totally misplaced. In that habeas corpus proceeding, Judge Aldisert held that the defendant's plea of guilty to murder was not entered with requisite understanding which is necessary to satisfy due process requirements where it appeared that he had earlier switched pleas, the trial court had failed to conduct an inquiry into his understanding of the nature and consequences of his plea, trial counsel was unfamiliar with criminal law and procedure and failed to explain the nature of the plea, and the defendant stated before sentence, and later, that he had acted in self-defense.
We approach our analysis of the Petitioner's contentions, in order to determine whether the plea was made voluntarily, after proper advice, and with a full understanding of the consequences. These are the ingredients which the due process requirements of the Fourteenth Amendment hold before us. Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). Apparently, the Petitioner has raised as the only contention the fact that in his hearing to determine the degree of guilt, since he testified he did not intend to shoot his wife but that the killing was accidental, that the trial court then should have ordered the guilty plea to be withdrawn and a plea of not guilty to be entered. We have independently examined the record of this hearing and agree entirely with the Supreme Court of Pennsylvania in their analysis of the situation as contained in the opinion of Justice Eagen:
"The prosecution stemmed from the fatal shooting of a Mrs. Zenuh with whom Chruscial had lived on-and-off for a period of two years.
Before accepting the guilty plea, the court questioned Chruscial to make certain he understood the nature of the charge, and that the plea was voluntarily entered and with a knowledge of its impact. No questions were asked concerning the details of the shooting. After the Commonwealth introduced its testimony as to the circumstances of the fatal event, Chruscial testified on his own behalf. The significant portions of his testimony are as follows.