Gerald P. Ginley, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., James A. Shellenberger, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix and Manderino, JJ., dissent.
Appellant, Lester Hayes, having been charged with murder, pleaded guilty to murder generally in the court of common pleas. After an extensive colloquy conducted, pursuant to Pa.R.Crim.P. 319, 19 P.S. Appendix, to determine the voluntariness of the plea, the plea was accepted by the trial court. During the course of this on-the-record examination, appellant, his court-appointed counsel, and the assistant District Attorney informed the court that the Commonwealth had agreed, in exchange for Hayes' plea of guilty, to certify that the offense rose no higher than murder in the second degree, but would recommend that the maximum sentence, i. e. ten to twenty years imprisonment, be imposed. On October 30, 1970, after conclusion of a hearing to determine the degree of guilt, the court found Hayes guilty of murder in
the second degree and deferred sentencing until an investigation relevant to that issue had been conducted.
On November 16, 1970, and before sentence had been imposed, appellant filed two petitions, in propria per sona, one for leave to withdraw his guilty plea, and another for dismissal of his trial counsel, Peter Galante, Esq., and for the appointment of new counsel. As the basis for his motion to withdraw his plea, appellant averred that he had decided to enter the guilty plea only upon the willfully misleading assurance by Mr. Galante that the plea bargain accepted by the Commonwealth included a promise that any sentence imposed would be made to run concurrently with a sentence already being served by Hayes for an unrelated federal offense. This same accusation of deception also formed the ground for his request for appointment of new counsel. After a hearing, and believing that Hayes' obvious lack of trust in defense counsel, whether or not well-founded, impeded a proper attorney-client relationship, the court dismissed Mr. Galante as attorney of record and appointed another lawyer to represent defendant. The court also scheduled an evidentiary hearing for assessment of the merits of appellant's allegations, and for sentencing. At this hearing, held on February 24, 1971, wherein appellant was represented by new counsel, Mr. Galante unequivocally denied his former client's charges. To the contrary, he stated that he had explained to Hayes that the prosecution had flatly refused even to discuss the possibility of recommending to the court that the state and federal sentences be made to run concurrently. Accepting Mr. Galante's testimony as true, the court found that the plea bargain as it had been disclosed to the court during the guilty plea proceedings was, in fact, the agreement to which Hayes had given his fully informed consent, and that, accordingly, his guilty plea had been entered voluntarily and intelligently. The petition for leave to withdraw the plea was, therefore denied. Appellant was
then sentenced to a term of imprisonment of ten to twenty years, such sentence to run consecutively with that being served in the federal penitentiary. No direct appeal was taken from the judgment of sentence.*fn1
With the assistance of counsel, Hayes then filed a petition for relief under the Post-Conviction Hearing Act.*fn2 In it he alleged (1) that his former lawyer's failure to take an appeal from the judgment of sentence infringed appellant's constitutional right to counsel on appeal;*fn3 (2) that his guilty plea had been involuntarily entered; (3) that the trial court had erred in denying his request to withdraw the plea; and (4) that he had been denied effective assistance of trial counsel. After an evidentiary hearing, the PCHA court denied relief. In this appeal, Hayes raises the first three issues considered by the court below. We will affirm.
1. It is argued that the failure of appellant's second appointed counsel, Joseph Atkinson, Esq., to take an appeal from the judgment of sentence operated as an effective denial of Hayes' appellate rights as guaranteed by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). At the evidentiary hearing conducted below, Mr. Hayes testified that his lawyer had assured him at various times during the year which followed the imposition of sentence that the lawyer was diligently preparing an appeal. Mr. Atkinson, on the other hand, testified that he had early informed appellant that, in his opinion, an appeal would be fruitless, and that appellant had ...