James D. McDonald, Jr., Erie, for appellant.
Charles D. Agresti, Erie, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Pomeroy, J., filed a concurring opinion. Nix, J., filed a dissenting opinion in which Manderino, J., joined.
This is the third time that Vernon Marsh has been before this Court on petitions for post-conviction relief, collaterally attempting to set aside his guilty plea to an indictment for murder. The facts surrounding the commission of the crime and the arrest of the appellant are amply set forth in Commonwealth v. Marsh, 440 Pa. 590, 594-95, 271 A.2d 481, 484 (1970) (Marsh I). The procedural history of his case, except for the steps taken in this appeal, are cogently delineated in Commonwealth Page 255} v. Marsh, 448 Pa. 292, 293-95, 293 A.2d 57, 59-60 (1971) (Marsh II). Suffice it to say that in Marsh I, we declined to set aside the petitioner's guilty plea as we adopted the United States Supreme Court's tripartite standard for invalidating guilty pleas. That standard originating in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970),*fn* states that a defendant who wishes to set aside a guilty plea must successfully demonstrate all of the following: (1) the existence of constitutionally infirm incriminating evidence; (2) that his guilty plea was primarily motivated by such evidence; and (3) that defendant was incompetently advised by counsel to plead guilty rather than stand trial. Marsh I rejected appellant's attempts to abandon his guilty plea because he had failed to allege ineffective assistance of counsel. In Marsh II, the appellant had a procedural opportunity to amend his motion for a new trial to include the specific allegation that the advice given to him by counsel at the time he originally entered his guilty plea was incompetently given. This Court examined the record as to facts surrounding the entry of the guilty plea and concluded in Marsh II :
"When appellant's pretrial motion to suppress his confession was denied, his counsel was faced with the decision of whether to let appellant go to trial and risk a death penalty or to plead guilty and take his chances with a three-judge panel at a degree-of-guilt hearing. Considering the strong evidence that this was a coldblooded robbery-murder, we cannot say that the advice
appellant received from his counsel was not 'within the range of competence demanded of attorneys in criminal cases.' [Citation omitted.]"
448 Pa. at 298, 293 A.2d at 61.
Now, in Marsh III, appellant asserts two arguments why this Court should again review the validity of his guilty plea.
First, it is asserted on appellant's behalf that Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973), overruled the Marsh I and Marsh II cases as far as the requirement of incompetency of counsel is concerned. This is not so! Ever since Marsh I, we have studiously followed the three-pronged test from McMann v. Richardson, supra, in examining the validity of guilty pleas. Commonwealth v. Velez, 455 Pa. 434, 317 A.2d 252 (1974); Commonwealth v. Butler, 454 Pa. 95, 309 A.2d 720 (filed October 3, 1973, the same day that the Wayman opinion was filed); Commonwealth v. Dennis, 451 Pa. 340, 304 A.2d 111 (1973); Commonwealth v. Tolbert, 450 Pa. 149, 299 A.2d 252 (1973); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Reagen, 447 Pa. 186, 290 A.2d 241 (1972). In Wayman, the appellant directly appealed his entry of guilty pleas to several charges of burglary. The record was remanded to the trial court for the filing of appropriate post-trial motions with instructions to the trial court to hold an evidentiary hearing in order to determine whether or not the guilty pleas were primarily motivated by an illegally obtained confession. On that part of the McMann test, the record was totally ...