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COMMONWEALTH v. WRIGHT (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
WRIGHT, APPELLANT



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.

COUNSEL

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 ...


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