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decided: January 29, 1976.



John C. Anderson, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Suzanne B. Ercole, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion in which Manderino, J., joins.

Author: Jones

[ 472 Pa. Page 228]


Appellant, William Jasper, was indicted on March 6, 1974, for the murder of one David Hall which occurred on February 5, 1974. The victim died from gunshot wounds of the chest and thorax. The shooting occurred in a public poolroom and the Commonwealth could produce witnesses who would identify appellant as the person who fired the shots. In addition, appellant confessed to the shooting.

On March 28, 1975, appellant and his attorney appeared before the lower court judge and there appellant pled guilty to murder generally and the District Attorney of Philadelphia stipulated that the evidence rose no higher than murder in the second degree. A lengthy colloquy among the judge, defense attorney, district attorney and the appellant ensued. After a review of the facts the trial judge accepted the plea and found appellant guilty of murder in the second degree. Following a pre-sentencing investigation ordered by the court, appellant was sentenced to a term in prison of not less than two and one half (2 1/2) nor more than ten (10) years. This direct appeal followed.*fn1

Here, appellant questions (1) the validity of his guilty plea and (2) whether the evidence was sufficient to warrant

[ 472 Pa. Page 229]

    a conviction of murder in the second degree. In view of our disposition of the former claim it is not necessary for us to discuss further appellant's latter contention.

The constitutional standard, as well as the reasons therefor, to be applied in testing the validity of a guilty plea is well stated in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1969):

"That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so -- hence the minimum requirement that his plea be the voluntary expression of his own choice. [Citations omitted]. But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial -- a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." [Citations omitted]. 397 U.S. at 748, 90 S.Ct. at 1468.

This Court has stated this standard in similar language. See Commonwealth v. Morales, 458 Pa. 18, 326 A.2d 331 (1974); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972); Commonwealth v. Enty, 442 Pa. 39, 271 A.2d 926 (1971).

Rule 319 of our Rules of Criminal Procedure provides:

"(a) Generally. A defendant may plead not guilty, guilty, or, with the consent of the court nolo contendere.

[ 472 Pa. Page 230]

The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record."

This rule codifies the above constitutional standard as well as the so-called "preferred practice" adopted by this Court in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), where we stated that the trial judge should, "conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences." 428 Pa. at 106, 237 A.2d at 198. (Emphasis added).

Our review of the instant record fails to demonstrate that William Jasper tendered a voluntary and understanding plea. The record contains a glaring misrepresentation on the part of the Assistant District Attorney during the colloquy which so taints the colloquy as to render it impossible for us to make a finding of a constitutionally valid plea. The misrepresentation is contained in the following exchange:*fn2

"Q. Do you understand that it is all up to His Honor?

A. Yes.

Q. Understanding that, you are pleading guilty to murder generally. The Commonwealth is certifying that it is not first degree. If it is second degree murder, understand murder is an unlawful killing that is accompanied by what we call malice. Malice as it is defined in the law is a general wantoness [sic]. That is a recklessness, a mind reckless of the consequences of one's act. Do you understand what I am talking about?

[ 472 Pa. Page 231]

A. Yes.

Q. Voluntary Manslaughter, which is the only crime that His Honor could adjudicate you guilty of, is an unlawful killing that is somehow provoked, legally provoked; do you understand that?

A. Yes." [Emphasis added].

This misrepresentation becomes all the more devastating when we consider the present facts -- that is, that William Jasper had been severely beaten and robbed by several youths immediately prior to the shooting, so that the murder arguably was done in the heat of passion. Regardless of the clear possibility in this case of a voluntary manslaughter verdict, the appellant was pleading guilty to murder, generally, and it was incumbent upon the Commonwealth to enlighten the defendant "in understandable terms" as to the nature of the charges. Commonwealth v. Ingram, 455 Pa. 198 at 204, 316 A.2d 77 at 80 (1974); Commonwealth v. Campbell, 451 Pa. 465 at 467, 304 A.2d 121, 122 (1973).

The record also indicates that appellant was seventy-nine years old, had no formal education, was taking medication daily for head injuries and responded to the questioning which constituted the essence of the colloquy with monosyllabic answers. Faced with these factors and the above mentioned misrepresentation by the attorney for the Commonwealth, we cannot say that the record demonstrates an awareness, on the part of the appellant, of the nature of the charges. The guilty plea in this case is constitutionally infirm. Therefore we reverse. New trial ordered.

Judgment of sentence reversed.

POMEROY, Justice (concurring).

I agree that the trial court should not have accepted appellant's plea of guilty to murder generally after the

[ 472 Pa. Page 232]

    district attorney represented to appellant that voluntary manslaughter was the only crime of which appellant could be convicted. I am also of opinion that the Court properly reaches the merits of appellant's challenge to his guilty plea, despite the fact that no petition to withdraw the plea was filed in the trial court. See my concurring opinion in Commonwealth v. Rodgers, 465 Pa. 379, 350 A.2d 815 (1976). Accordingly, I join in the reversal of the judgment of sentence and the remanding of the case for a new trial.

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