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decided: February 27, 1975.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1958, No. 945, in case of Commonwealth of Pennsylvania v. Clarence Wright.


Frank S. Dreeben, for appellant.

David Richman, Douglas B. Richardson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 232 Pa. Super. Page 471]

This appeal is from the denial of relief under the Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1974-75).

[ 232 Pa. Super. Page 472]

On June 26, 1958, appellant appeared before Judge Reimel and pleaded guilty*fn1 to aggravated robbery on Indictment No. 945.*fn2 He was sentenced to 10 to 20 years. On July 3, 1958, his sentence was reconsidered and vacated by Judge Reimel. Re-sentencing was deferred until February 5, 1959, when he was again sentenced to 10 to 20 years by Judge Reimel. No appeal was taken at that time. On February 23, 1973, appellant filed a petition for relief pursuant to the Post Conviction Hearing Act, supra. Hearings were held before Judge Doty on May 31 and August 3, 1973. The petition was denied and this appeal followed.

It is first necessary to clarify the nature of appellant's plea to Indictment No. 945. On the indictment itself, as well as in the docket entries, it is stated that appellant pleaded guilty; and at the post-conviction hearing appellant testified that he had pleaded guilty, and the Commonwealth agreed. However, the post-conviction hearing judge, in his opinion, and the Commonwealth, in its brief to this court, state that although appellant pleaded guilty to some of the other indictments, he pleaded not guilty to No. 945. We ascribe these statements to inadvertence. On the basis of our examination of the indictment, and of appellant's testimony at the post-conviction

[ 232 Pa. Super. Page 473]

    hearing, we find that in fact appellant pleaded guilty to Indictment No. 945. We shall therefore consider appellant's several claims for relief in light of that finding.

Appellant claims that his arrest was unlawful and that he was denied ordinary rights and privileges by the police at the time of his arrest. At the post-conviction hearing appellant testified in support of this claim that he was taken to the police station, handcuffed to a chair, and slapped twice by the detectives who were interrogating him.

The manner in which a defendant is treated when arrested will not result in the vacation of a plea of guilty unless the facts are sufficient to prove that the defendant's will was so overborne that the plea was involuntary. Commonwealth v. Musser, 220 Pa. Superior Ct. 269, 286 A.2d 651 (1971). Whether this occurred will often present an issue of credibility. Here, the hearing judge chose not to find that appellant's will was overborne. The question is therefore whether this decision is supported by the evidence. Commonwealth v. Dickerson, 449 Pa. 70, 73-74, 295 A.2d 282, 284 (1972). "[I]f supported by evidence in the record [the hearing judge's findings] may not be overtuned" on appeal. Commonwealth v. Minnick, 432 Pa. 462, 464, 247 A.2d 569, 571 (1968).

In describing the slaps, appellant said one "wasn't too hard," and that he did not require medical attention; and although he said he had been handcuffed for five hours without food or water, and without being permitted to go to the bathroom, he did not recall asking for food or water or to go to the bathroom. Also, his testimony weakened under cross-examination. In the circumstances, we conclude that the hearing judge's finding was within his discretion, and we shall not disturb it.

Appellant next claims that his confession was involuntary. Before a guilty plea may be set aside because of an involuntary confession, the defendant must show: (1)

[ 232 Pa. Super. Page 474]

    that the confession was unconstitutionally obtained under the standards applicable at the time of his plea; (2) that the plea was primarily motivated by the existence of the confession; and (3) that he was incompetently advised by counsel to plead guilty rather than stand trial. McMann v. Richardson, 397 U.S. 759 (1970); Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970).

At the post-conviction hearing appellant claimed that his attorney, a Public Defender, had induced him to sign statements on the promise that if he cooperated by making the statements to the police, the judge would be lenient and give him probation. Appellant also claimed that he could not read well, and that he therefore did not know what the statements said. On cross-examination, however, it became apparent that the statement that referred to the crime charged in Indictment No. 945 was exculpatory.*fn3 The hearing judge chose to disbelieve appellant, and found that the confession was "freely and voluntarily" given. Again, we shall not disturb this finding. Commonwealth v. Minnick, supra at 464, 247 A.2d at 571.

Appellant next makes a general attack on the voluntariness of his guilty plea. The burden of proving the involuntariness of a plea entered before January 3, 1968, is on the defendant. Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).*fn4 "We begin with the

[ 232 Pa. Super. Page 475]

    proposition that whenever the accused pleads guilty to an indictment, he is presumed to be aware of what he is doing. Therefore, the burden is ordinarily on the appellant to prove that he did not enter his guilty plea knowingly . . . . It is a matter of credibility and the court may refuse to believe the appellant's version of what happened." Commonwealth v. Cushnie, 433 Pa. 131, 132-133, 249 A.2d 290, 291 (1969).

The hearing judge found*fn5 the plea to be voluntary. In arriving at this finding, he noted that appellant had pleaded guilty to some indictments and not guilty to others,*fn6 which indicates that appellant was aware of his right to plead not guilty and chose voluntarily to waive that right in this case. We find that appellant has not met his burden.

Finally, appellant claims that he was not represented by counsel when he was resentenced by Judge Reimel on February 5, 1959.*fn7

[ 232 Pa. Super. Page 476]

The re-sentencing transcript is missing. "[W]hile a transcript per se is not an absolute due process necessity, there must be at least an equivalent 'picture' of what transpired below," if an appellate court is to decide the case properly; and if it is impossible to provide such a picture, a new trial must be ordered. Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877, 882 (1971), made retroactively applicable by Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972).

Here, Judge Doty had select portions of the record at the time of the post-conviction hearing.*fn8 In addition, he reconstructed the missing portions through testimony given at the hearing. Of particular importance was the testimony of Armand Della Porta, who was the Assistant District Attorney at the resentencing, and is now a Common Pleas Judge. While Judge Della Porta had no independent recollection of this case, he did bring with him the District Attorney's file on Indictment No. 945. He testified that noted on the file jacket, in his own handwriting, was the fact that appellant was represented at the resentencing by Public Defender Robert Thompson, Esquire.*fn9 Judge Della Porta testified that it was invariably his practice to make such notations contemporaneously with the hearing. Judge Doty accepted this testimony and found "that defendant was represented by counsel when he was resentenced by Judge Reimel on February 5, 1959." As this finding is supported by the record, we shall not disturb it. Commonwealth v. Minnick, supra at 462, 247 A.2d at 571.

The decision of the lower court is affirmed.


Order affirmed.

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