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COMMONWEALTH PENNSYLVANIA v. THERON KITTRELES (01/29/76)

decided: January 29, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
THERON KITTRELES, APPELLANT



COUNSEL

Robert M. Rosenblum, Goldstein & Rosenblum, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine Stotland, Asst. Dist. Atty., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Manderino, J., files a dissenting opinion in which Roberts, J., joins.

Author: O'brien

[ 465 Pa. Page 433]

OPINION OF THE COURT

Appellant, Theron Kittreles, entered a plea of guilty to a general charge of murder. On September 18, 1964, a degree-of-guilt hearing was held and appellant was sentenced to life imprisonment, after an adjudication of murder in the first degree. In 1968, appellant filed a Post Conviction Hearing Act petition in which he sought to withdraw his guilty plea. After a hearing, the motion was denied and appellant was permitted to file post-trial motions nunc pro tunc, which were denied. This appeal followed.

The sole issue raised in this appeal is whether appellant should be allowed to withdraw his guilty plea, based on his contention that the plea was motivated by an allegedly constitutionally infirm confession. Since appellant seeks to withdraw his guilty plea based on an allegedly constitutionally infirm confession, he must meet the tests as stated in Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970), wherein we held that an appellant must establish (1) an involuntary pretrial confession, (2) that the guilty plea was primarily motivated by such evidence, and (3) the defendant was incompetently advised by counsel to plead, in the circumstances, rather than stand trial.

In the instant case, we are of the opinion that appellant failed to meet the three-prong test of Marsh.

[ 465 Pa. Page 434]

Appellant's counsel, testifying at appellant's PCHA hearing in 1968, stated that the decision that appellant plead guilty was based on the fact that aside from appellant's confession, there was enough admissible evidence to convict appellant of first-degree murder and, therefore, appellant pled guilty in order to avoid the death penalty. Appellant's counsel testified that after he reviewed the police summary of the evidence indicating that appellant was arrested fleeing from the scene of the homicide, that the murder weapon, a knife bearing appellant's fingerprints, was recovered, and the fact that the decedent was stabbed in the heart, permits an inference of a specific intent to kill. The court below concluded that appellant's decision to plead guilty was not primarily motivated by the allegedly illegal confession, but rather was an attempt to avoid the death penalty, a reason that would not allow its withdrawal. See Commonwealth v. Henderson, 441 Pa. 255, 272 A.2d 182 (1971). This conclusion is borne out by the record. Moreover, appellant's contention that his counsel's advice to plead guilty was incompetent because the evidence, aside from the confession, would not support a verdict of first degree murder is not acceptable. The fact that the Commonwealth's evidence could prove that appellant had inflicted a knife wound to the decedent's heart would alone support a first-degree murder charge. In many decisions of this court we have stated that the use of a deadly weapon upon a vital part of the body is sufficient to support an inference of specific intent to kill. See Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974), Commonwealth v. Mosley, 444 Pa. 134, 279 A.2d 174 (1971).

Order affirmed.

[ 465 Pa. Page 435]

MANDERINO, Justice (dissenting).

I dissent. The majority ignores both the common law and the statutory law of Pennsylvania. See Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976) (Manderino dissenting joined by Roberts, J.); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976) (Manderino dissenting joined by Roberts, J.).

The majority holds that evidence of the use of a deadly weapon on a vital part of the body is sufficient to support an inference of the intent to kill -- so far so good. This first inference is reasonable and was accepted at common law. The majority then proceeds, however, without explanation and without any basis in the history of the law of murder in Pennsylvania or elsewhere, to hold that from the first inference -- that one had the intent to kill -- a second inference is permissible -- that the defendant's act was willful, deliberate, and premeditated. In effect, the majority says that proof of the use of a deadly weapon upon a vital part of the body allows an inferential leap to the conclusion that the defendant had a specific intent to kill, and that conclusion warrants a second inferential leap to the conclusion that the killing was willful, deliberate, and premeditated. That is not, and has not been a proper analysis of the law of murder in this or any other jurisdiction.

One who possesses the intent to kill may or may not have formed that intent to kill in a willful, deliberate, and premeditated murder. If the intent to kill was willful, deliberate, and premeditated, the killing is murder in the first degree. If, however, the defendant's intent to kill was not formulated in a willful, deliberate, and premeditated manner, the killing is ...


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