Francis J. Fornelli, Sharon, for appellant.
Joseph J. Nelson, Dist. Atty., Mercer, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
In September 1968, appellant, Donald R. Hosack, entered a plea of guilty to murder generally and to two counts of rape. Following a degree of guilt hearing guilt was fixed at murder in the first degree. He was sentenced to life imprisonment on the murder charge and to ten to twenty years on each count of rape to run consecutively. No direct appeal was taken. Subsequently appellant filed a PCHA petition under the Post-Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, §§ 1-14, as amended 19 P.S. §§ 1180-1, 1180-14 (Supp.1974-75) to the judgment of sentence imposed upon the
indictment charging murder, No. 41 June Term, 1968. After a hearing on the petition, the lower court denied relief. This appeal followed.*fn1
Appellant first contends that he is entitled to withdraw his guilty plea because it was unknowing in that he was not aware at the time he entered the plea that he was entitled to a trial without a jury under Rule 1101 of the Pa.Rules of Criminal Procedure, 19 P.S. Appendix. However, in September, 1968, when this plea was entered, Rule 1101 did not permit a non-jury trial in a case in which a capital crime was charged. A capital crime was then and is now defined as one for which the death penalty may be imposed. See Rule 1100 Pa.Rules of Criminal Procedures (1973 ed.) and Commonwealth v. Truesdale, 449 Pa. 325, 331, 296 A.2d 829, 833 (1972). Since appellant, having been charged with a capital offense, was subject to the death penalty, Rule 1101 disallowed a non-jury trial in his case. We note that under the present Rule 1101, Pa.Rules Crim.Pro. (1974 ed.), this restriction was abolished in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) which invalidated the death penalty as presently imposed.
Appellant next alleges that he is entitled to relief because the prosecutor failed to keep two promises which were used to induce appellant to plead guilty. The first promise alleged to have been made was that the prosecutor would nolle pros several outstanding charges against appellant.*fn2 The prosecutor did formally nolle pros a burglary charge and a larceny charge, but failed to formally nolle pros four outstanding rape charges. No attempt to prosecute these charges has been made. Although appellant
has shown no prejudice here and would probably be protected by the rules of speedy trial, see Pa.R.Crim.Pro. 1100 (1974) and Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), in order to clarify the record and assure the full protection of appellant's rights, the record is to be remanded with the direction that these charges be formally nolle prossed.
The second promise alleged to have been made was that the prosecutor would not seek the death penalty. The attorney who represented appellant at the time ...