Thomas J. Calnan, Jr., Allentown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy and Manderino, JJ., concur in the result. Roberts, J., dissents.
On February 5, 1973, appellant, represented by retained counsel, entered a plea of guilt to murder generally
and was adjudged guilty of murder in the second degree for the shooting death of his son. Sentence of imprisonment of 10 to 20 years was imposed. No direct appeal was filed.*fn1
On May 23, 1975, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. alleging (1) denial of his right to representation by competent counsel, (2) that his guilty plea had not been knowingly entered, and (3) that his right to appeal had been unlawfully obstructed. Counsel was appointed and, following a hearing, relief was denied. The appeal followed.
Initially we note that trial counsel, was retained by a member of appellant's family shortly after the arrest and conducted the defense throughout the proceedings below. Counsel was successful in suppressing appellant's in-custody confession.
From the outset the defense was handicapped because appellant claimed he had no recollection of the occurrence. This inability to recall the circumstances surrounding the incident was attributed to his heavy consumption of alcoholic beverages during that period. The only known living witness to the event was appellant's wife who was also a victim. Equally significant, appellant has never seriously questioned the Commonwealth's assertion that he fired the shots that wounded his wife and caused the death of his son. There was also competent evidence that strongly suggested appellant had no remorse for his acts.
In this context we will now turn to the specific allegations upon which appellant's claim of ineffective assistance of counsel is predicated. It is asserted that
counsel was derelict in failing to insist upon a degree of guilt hearing which is mandated under Pennsylvania Rule of Criminal Procedure 319A. This claim arises because trial counsel attempted to persuade the court that there was no necessity to hear the testimony of the Commonwealth's witnesses since the prosector's agreement to a finding of murder in the second degree had been secured.*fn2 A reading of the record reveals this course of action was probably inspired by a realization that the evidence might well have caused the court serious question as to the appropriateness of a certification that the offense rose no higher than second ...