Paul C. Vangrossi, Norristown, for appellant.
Milton O. Moss, Dist. Atty., William T. Nicholas, 1st Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appellate Div., Norristown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Nix, J., filed a dissenting opinion in which Manderino, J., joins.
On July 16, 1972, appellant, Edward Zakrzewski, was charged with the murder of one John Higgins. Upon the return of an indictment for the crime, appellant entered a plea of not guilty and moved for the suppression of a confession which he had given the police subsequent to his arrest. Concluding that the confession had been voluntarily made, the suppression court denied the motion. Appellant then, upon the advice of counsel, withdrew his plea of not guilty and entered a plea of guilty to murder generally. This plea was conditioned upon his right to withdraw it and proceed to trial should the court determine that the killing rose to murder in the first degree. A degree of guilt hearing was then conducted, at the conclusion of which the court found appellant guilty of murder in the second degree and sentenced him to not less than ten and not more than twenty years imprisonment. This appeal followed.*fn1
Appellant seeks to have his guilty plea vacated upon two grounds.*fn2 It is first contended that the plea was involuntarily entered in that it was motivated by a confession which, appellant claims, was unconstitutionally obtained. In order to attack a guilty plea on this ground a defendant must allege and establish: (1) that the confession was, indeed, unlawfully obtained; (2) that the plea was primarily motivated by that confession; and (3) that his decision to plead guilty rather than to stand trial was made upon the incompetent advice of counsel. Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181 (1975) [filed February 26, 1975]; Commonwealth v. Williams, 456 Pa. 377, 321 A.2d 608 (1974); Commonwealth v. Velez, 455 Pa. 434, 317 A.2d 252 (1974); Commonwealth v. Tolbert, 450 Pa. 149, 299 A.2d 252 (1973); Commonwealth v. Hollenbaugh, 449 Pa. 6, 295 A.2d 786 (1972); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970).
In the case at bar appellant has made no claim, much less demonstrated, that his trial counsel was ineffective.*fn3 Indeed, a careful review of the record reveals that defense counsel's conclusion that it was in appellant's best interests to plead guilty was reasonable under the circumstances. We, therefore, reject appellant's
claim for relief on this ground. See Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971); Commonwealth v. Smith, 442 Pa. 105, 275 A.2d 329 (1971); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Zakrzewski has filed with this Court a document in the nature of a brief or petition, prepared by himself, asserting that his plea was the result of assurances made to him by his lawyer that the District Attorney and the trial court had agreed to the imposition of a sentence not to exceed seven to fifteen years in exchange for his plea of guilty to murder generally.
It is settled that where a plea bargain has been entered into and is violated by the Commonwealth, the defendant is entitled, at the least, to the benefit of the bargain. Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971). See Commonwealth v. Hosack, 459 Pa. 27, 326 A.2d 352 (1974); Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973); Commonwealth v. Barrett, 223 Pa. Super. 163, 299 A.2d 30 (1972). See also Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). But see Commonwealth v. Wilkens, 442 Pa. 524, 277 A.2d 341 (1971). It is equally settled that a trial court may not, consistently with the requirements of due process participate in a plea bargain, Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969); and that a defendant's undispelled misapprehension that the court is bound by such an ...