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COMMONWEALTH v. SMITH (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1972, No. 412, in case of Commonwealth of Pennsylvania v. James Curtis Smith.

COUNSEL

Stephen P. Swem and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C.j., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.

Author: Jones

[ 454 Pa. Page 257]

In the early hours of November 7, 1971, appellant and one Gamalia Payne were customers in a tavern in the Homewood section of Pittsburgh. Due to their excessive consumption of alcohol, a minor altercation occurred and Payne left the premises. Shortly thereafter, appellant and a friend left for home, at which time they were confronted by Payne. Appellant was intimidated by Payne's verbal threats and, hence, when Payne ultimately reached for a cooking fork, appellant retreated. At the same time, however, he grabbed a metal lug wrench or tire iron. Payne fled but appellant, with designs of his own, took to the offensive. He chased Payne 450 to 475 feet before overtaking him and striking him several times on and about the skull with the tire iron. He succeeded in fracturing Payne's skull, from which injuries Payne died.

Appellant was indicted on counts of murder and voluntary manslaughter. On June 12, 1972, in open court while represented by counsel, appellant pleaded guilty to murder generally. The court heard testimony to determine the degree of guilt and concluded that appellant was guilty of second-degree murder.

[ 454 Pa. Page 258]

On June 16, 1972, appellant, through counsel, filed a motion for new trial but this motion was subsequently withdrawn. One week later, appellant was sentenced to a term of five to fifteen years' imprisonment. A direct appeal was taken to this Court and the Public Defender of Allegheny County was appointed counsel for defendant. On August 29, 1972, the lower court rendered an opinion in which it considered the validity of appellant's guilty plea, concluding that the plea was voluntarily, knowingly and intelligently entered.

On October 3, 1972, we remanded appellant's case to the lower court, ordering an evidentiary hearing to determine the voluntariness of the guilty plea, the waiver of post-trial motions and other matters relevant in this appeal. On November 2, 1972, appellant filed a petition under the Post Conviction Hearing Act*fn1 alleging numerous infirmities in his conviction.*fn2 The evidentiary hearing on the direct appeal was consolidated with the Post Conviction Hearing petition on appellant's motion and a hearing was held on May 18, 1973. Relief was denied and this appeal followed.

Appellant now contends that his guilty plea was not voluntarily entered because it was based on assurances from counsel, who he alleges had made a

[ 454 Pa. Page 259]

    plea bargain with the District Attorney, that his sentence would be from two to ten years and that his responsibility would rise no higher than voluntary manslaughter. He urges that he is now entitled either to withdraw that plea or to receive a sentence reduced to the terms of the bargain because the prosecutor's promise was not kept. Appellant further maintains that this plea bargain had been withheld ...


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