decided: January 29, 1976.
COMMONWEALTH OF PENNSYLVANIA
DEMPSEY MCCRARY, APPELLANT
John C. Anderson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Francis C. Barbieri, Jr., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Nix and Manderino, JJ., join.
Author: Per Curiam
[ 465 Pa. Page 297]
OPINION OF THE COURT
Judgment of sentence affirmed.
Appellant Dempsey McCray alleges that his guilty plea was motivated by an illegally obtained confession. The majority refuses to grant him relief because he is unable
[ 465 Pa. Page 298]
to satisfy the third portion of the Marsh*fn* test which requires that appellant, in order to obtain relief on his claim, show that he was assisted by ineffective trial counsel when he entered his guilty plea. As this case illustrates, there are practically no circumstances in which the third portion of the test can be satisfied. If the Commonwealth has unconstitutionally obtained a confession, and a suppression court refuses to suppress it, a defendant charged with murder, as was appellant, is faced with two choices: (1) he may preserve his claim by standing trial with the risk of being found guilty of first degree murder or (2) he can plead guilty to second degree murder. In such circumstances, it would almost never be ineffective for trial counsel to recommend a guilty plea. Thus the third portion of the Marsh test is little more than a subtle means by which the majority deprives appellants of the opportunity to vindicate their constitutional claims in the courts of the Commonwealth.
*fn* Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181 (1975). Mr. Justice Nix, Mr. Justice Manderino and I have repeatedly noted our fundamental disagreement with the third portion of the Marsh test. See, e. g., Commonwealth v. Zakrzewski, 460 Pa. 528, , 333 A.2d 898, 901 (1975); Commonwealth v. Taylor, 449 Pa. 345, 355, 296 A.2d 823, 828 (1972).