John J. Dean, John R. Cook, Office of Public Defender, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., John M. Tighe, First Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., filed a dissenting opinion.
On April 3, 1963, the appellant, Donald Hubbard, shot and killed his estranged wife. Immediately after the shooting, the appellant proceeded to a nearby police station and informed the police that he had shot his wife. The following morning the appellant gave the police a signed confession.
Following a coroner's inquest, the appellant was held over for action by the grand jury on a charge of murder. The grand jury returned indictments for voluntary manslaughter, murder, and involuntary manslaughter on May 16, 1963. A non-jury trial before two judges was held on October 21, 1963, at which the appellant, with privately retained counsel present, pled guilty. Following a degree of guilt hearing, the appellant was found guilty of murder in the first degree and sentenced to life imprisonment. The involuntary manslaughter indictment was nolle prossed. The appellant did not file a direct appeal. On April 20, 1971, following a post conviction hearing pursuant to the Post Conviction Hearing Act, appellant was permitted to file post-verdict motions as if timely filed, and to take a direct appeal.
The sole issue raised here concerns the validity of the appellant's 1963 guilty plea. Appellant claims that his plea was invalid in that it was not knowingly, intelligently, and voluntarily entered. Appellant advances two specific reasons in support of this claim. First, he claims that the on-the-record colloquy prior to the court's acceptance of the plea fails to establish that appellant understood the nature of the charges, the significance of the plea, the consequences of the plea, and the availability of other alternatives. Secondly, appellant claims that the court erred in accepting his plea because it was coupled with his assertion of innocence. For reasons hereinafter stated, we affirm the judgment of sentence.
The law applicable to the present case is clear. A guilty plea must be knowingly, intelligently and voluntarily made. Commonwealth v. Enty, 442 Pa. 39, 271 A.2d 926 (1971). In Commonwealth v. Brown, 443 Pa. 21, 25, 275 A.2d 332, 334 (1971), this Court stated:
"In Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 . . . we held that henceforth in Pennsylvania it should be the practice that an on-the-record examination of the defendant be conducted by the lower Court to determine if the plea was voluntarily, knowingly and intelligently entered. Boykin v. Alabama, [395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)] made what had already been the law in Pennsylvania after West and Pa.R.Crim.P. 319(a) into a Federal Constitutional dimension -- to-wit, there must be an on-the-record examination by the lower Court to determine if the guilty plea was properly entered. Since Boykin was not made retroactive, Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923, and the guilty plea was entered prior to the decision in West, appellant has the burden of proving that his guilty plea was not voluntarily, knowingly and intelligently made." (Citations omitted.) (Emphasis in original.)
Since appellant here, like the appellant in Brown, plead guilty prior to our decision in West, and since he was represented by counsel at the guilty plea hearing, an on-the-record guilty plea colloquy was not required, and the burden is now on appellant to show ...