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June 19, 1975

Vernon Carl MARSH, Petitioner,
J. F. MAZURKIEWICZ, Superintendent State Correctional Institution at Rockview, Bellefonte, Pennsylvania

Weber, District Judge.

The opinion of the court was delivered by: WEBER

Vernon Carl Marsh is a state prisoner currently serving a sentence of life imprisonment for the first degree murder of Bruno C. Roehrl. Marsh filed a petition for a writ of habeas corpus and he was granted an evidentiary hearing before this court.

 The history of Marsh's case in the state courts is recited in our prior opinion of March 18, 1974, 372 F. Supp. 783 [W.D.Pa.]. In that opinion we made no findings on the evidence received but found that a remand to the state courts for failure to exhaust state remedies was indicated. We read Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 [1973] as either subsequently announcing a constitutional right or creating a new remedy for petitioner in the state courts. Petitioner appealed from that determination and the United States Court of Appeals for the Third Circuit remanded the matter to this court "for a decision on the merits of appellant's claims, with consent by appellee". [Memorandum Order, Third Circuit April 4, 1975].

 Marsh first seeks a determination that the refusal of the state courts to allow him to withdraw his plea of guilty to a general charge of murder constituted a violation of his right to due process of law. Marsh contends that his guilty plea was tainted in at least three respects. He claims that the plea was primarily motivated by a confession which the state courts subsequently determined to be invalid, that the suppression court's preliminary decision that that confession was admissible rested on false testimony produced by the prosecution, and that pretrial publicity carried the taint of the first two wrongs through to the plea proceedings.

 On the question of pretrial publicity petitioner produced evidence of the news coverage given to his arrest and arraignment on local television, in local newspapers and in national magazines. Television newsfilms were viewed by the court and newspaper and magazine articles were received in evidence. Circulation figures for the publications and audience ratings for the television news programs were produced. We find that the pretrial publicity, while substantial, was not such "inherently prejudicial publicity which saturated the community", Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600 [1966], as would have prevented a fair trial had petitioner chosen not to plead guilty. Moreover, we find no evidence in the record that the possible effect of pretrial publicity on a jury was a factor in the petitioner's mind when he made his decision to plead. The transcript of petitioner's testimony at the state post conviction provides no evidence that petitioner himself considered this issue. Petitioner's counsel testified at the evidentiary hearing before this court that he had considered the publicity when advising the plea, but counsel did not discuss with his client either the effect of such publicity or the alternatives of a delay in trial or a change of venue. (Transcript, pp. 73, 87). Accordingly, we feel that the evidence on pretrial publicity is relevant only in assessing the competency of petitioner's counsel's advice to plead guilty.

 Petitioner next cites a discrepancy between the testimony of police Sgt. Weir at the suppression hearing and his testimony at the first degree-of-guilt trial. At the suppression hearing Sgt. Weir testified that Marsh had not asked police officers for permission to call his wife before he made his written confession, but Weir directly contradicted this statement in his testimony at trial. Petitioner does not claim that the "false testimony" at the suppression hearing is itself sufficient to require a setting aside of his guilty plea. Indeed, a claim that a prosecution witness gave perjured testimony is insufficient for federal habeas corpus relief from a state conviction absent any proof that the prosecution suborned perjury. U.S. ex rel. Smith v. Reincke, 354 F.2d 418 [2nd Cir. 1965]. See also Johnson v. Bennett, 386 F.2d 677 [8th Cir. 1967], vacated on other grounds, 393 U.S. 253, 89 S. Ct. 436, 21 L. Ed. 2d 415; United States ex rel. Mathis v. Rundle, 266 F. Supp. 1003 [D.C.Pa.1967], aff'd, 3 Cir., 394 F.2d 748; United States ex rel. Cornitcher v. Myers, 253 F. Supp. 763 [D.C.Pa.1966]. There is not even an allegation here of subornation of perjury. Petitioner contends, however, that the false testimony was at least one of several influences which tainted his plea. However, petitioner has not produced evidence showing any causal relation between this factor and his decision to plead guilty. Neither the testimony of his trial counsel before this court nor the testimony of petitioner himself in the post-conviction hearing shows that the false testimony was given any weight by petitioner himself when he made his decision to plead.

 Petitioner also argues that his trial counsel, deprived by the false testimony of the true facts of the suppression issue, could not competently advise him. However, petitioner has been unable to provide the court any authority for the proposition that federal habeas corpus relief for incompetent advice of counsel may encompass such a situation, and the court has discovered no case which stands for such a proposition.

 Petitioner's case for invalidating his guilty plea to a federal habeas corpus proceeding ultimately rests on his ability to demonstrate that he has satisfied the requirements of McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 [1970]. McMann requires that the guilty plea be primarily motivated by a constitutionally proscribed confession and be prompted by inadequate advice of counsel. Our review of the state court records and the evidence presented before this court convinces us that petitioner's primary motivation for the entry of his plea of guilty to murder generally was a confession, and the fruits thereof, held by the Supreme Court of Pennsylvania to be constitutionally proscribed. We accept the determination of the state court on the question of the constitutional infirmity of the plea although we believe that the question was a close one. We observe that the infirmity in the plea resulted only from the court not being "persuaded that [Marsh] was fully apprised that the Commonwealth would bear the economic costs of providing [him] with counsel, if he were indigent". Commonwealth v. Marsh, 448 Pa. 292, 298, 293 A.2d 57, 61 [1972]. We therefore reach the question of the competency of the advice rendered petitioner by his trial counsel.

 Our independent review of the record leads us to agree with the conclusion reached by the Supreme Court of Pennsylvania in its second opinion in Commonwealth v. Marsh, 448 Pa. 292, 293 A.2d 57 [1972] that trial counsel's advice was not incompetent.

"When [Marsh's] pretrial motion to suppress his confession was denied, his counsel was faced with the decision of whether to let [Marsh] 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 cold-blooded robbery-murder, we cannot say that the advice [Marsh] received from his counsel was not 'within the range of competence demanded of attorneys in criminal cases.'" 448 Pa. at 298, 293 A.2d at 61.

 The test is not whether the advice given was correct but whether, under the circumstances existing at the time the advice was given, the advice was within the range of "normal competency". Moore v. United States, 432 F.2d 730, 737 [3rd Cir. 1970] and cases cited therein. In arriving at our conclusion on this issue we have considered the fact that at the time petitioner's plea was entered there was little published authority detailing the specific language in which police officers should convey to prisoners the information required by Miranda. We have also considered the testimony presented to the suppression court. We have concluded that at the time counsel advised the guilty plea there was room for dispute among competent lawyers as to the admissibility of petitioner's confession in the light of the Miranda warning and the disputed issue of fact as to plaintiff's request to call his wife.

 There are of course certain exceptional cases in which, regardless of the competence of defense counsel's advice, a guilty plea was successfully attacked in a federal habeas corpus proceeding. The petitioner cites Chambers v. Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716 [1940], as an example of a situation in which the "circumstances that coerced the confession have abiding impact and also taint the plea". McMann, cit. supra, 397 U.S. p. 767, 90 S. Ct. p. 1447. In Chambers the Court accorded relief to the petitioners because

"from arrest until sentenced to death, petitioners were never -- either in jail or in court -- wholly removed from the constant observation, influence, custody and control of those whose persistent pressure brought about [their incriminating statements]." 309 U.S. at 235, 60 S. Ct. at 476.

 In Chambers extraordinary abuse of prisoners by police officers produced the confessions and continued unabated until the guilty pleas were entered. Petitioner herein has not demonstrated that the circumstances which attended the entry of his guilty plea ...

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