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decided: October 16, 1974.


Appeal from judgment of sentence of Court of Common Pleas of Carbon County, June T., 1965, No. 28, in case of Commonwealth of Pennsylvania v. Edward Eugene Eckhart.


Richard W. Webb, for appellant.

Murray Mackson, First Assistant District Attorney, and John Deutsch, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy and Mr. Justice Manderino join in this concurring opinion.

Author: Jones

[ 457 Pa. Page 483]

Appellant was originally found guilty by a jury of first-degree murder in January 1966 and was sentenced to life imprisonment. On direct appeal, this Court

[ 457 Pa. Page 484]

    granted a new trial.*fn1 On September 16, 1968, appellant pleaded guilty to a charge of murder generally and was thereafter convicted by a three-judge panel of first-degree murder and sentenced to life imprisonment on December 18, 1968. Subsequently, appellant filed a pro se Post Conviction Hearing Act (PCHA)*fn2 petition alleging that the plea was entered because of counsel's opinion that a jury might give him the death sentence but that he would probably be found guilty of no more than second-degree murder if he would plead guilty. While this petition was pending, a second appeal was taken to this Court dealing with various alleged errors on the part of the three-judge court and we affirmed.*fn3 Meanwhile, the trial court informed the appellant that he should amend his PCHA petition but when no action was taken, it was dismissed.

On July 9, 1973, appellant filed an amended PCHA petition nunc pro tunc. A hearing was held on this petition on October 19, 1973, and on November 2, 1973, the trial court entered an opinion and order denying that petition. This appeal is from that order.

The only questions presented by this case relate to whether appellant's guilty plea was voluntarily and knowingly entered. Appellant initially argues that his plea was the product of his fear of the death penalty. He claims that upon looking at the jury list, his attorney suggested that a jury might very well impose the death penalty upon him. He further asserts that he was motivated to plead by his attorney's opinion that a plea of guilty would result in a conviction of no higher than second-degree murder.

[ 457 Pa. Page 485]

As to the first point, it should be noted that appellant's guilty plea preceded our decision in Commonwealth Page 485} v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969), in which we held, inter alia, that where a defendant has been convicted of first-degree murder and sentenced to life imprisonment, he may not upon retrial receive the death sentence. However, even if the events in this case had post-dated Littlejohn, appellant's position would not be improved. It is clear from the record of the proceedings that appellant was told by the judge that even if he pleaded guilty, he might still receive the death sentence: "Q. [By the Court] Now then, by pleading guilty, you intend waiving the right of a trial by jury, so that there is no jury going to try you, and you will be tried by the Judge? A. [By Appellant] Yes. Q. You realize that under the Rules of Court promulgated by the Supreme Court, that we are now obliged to take testimony as to whether or not the Commonwealth is able to produce enough evidence to suggest that you are guilty of First Degree Murder, which may result in imprisonment for life or the death sentence? A. Yes." Under these circumstances, appellant cannot contend that his plea was entered in order to avoid the possible imposition of the death penalty by a jury. He had acknowledged his awareness that the possibility of receiving this penalty was not foreclosed by a plea of guilty. Trial counsel and the trial court may have been mistaken in speaking about the possibility of capital punishment in light of our subsequent decision in Littlejohn, supra. Nevertheless, the fact that appellant was informed that the death penalty was a possibility not only if he went to trial but even if he pleaded guilty negates the contention that his decision to take the latter course was the product of his fear of receiving that penalty.

Appellant's other related argument -- that his counsel's opinion that a guilty plea would result in no higher than second-degree murder conviction -- is equally meritless. The transcript of the proceedings where the ...

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