Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at Nos. 1922 and 1923 March Term, 1971. No. 834 April Term, 1975.
John J. Dean, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion.
[ 241 Pa. Super. Page 111]
Appellant was arrested and indicted on charges of burglary, larceny, receiving stolen goods and corrupting the morals of a minor. A suppression hearing was held on April 29, 1971 and appellant's motions to suppress were denied. On July 7, 1971 appellant pleaded guilty to the above charges and was sentenced to two consecutive prison terms of two to four years each. On May 17, 1972 appellant filed a petition pursuant to the Post Conviction Hearing Act*fn1 which was dismissed without a hearing. On January 3, 1973 an appeal concerning the dismissal of the PCHA petition was filed with this court. On March 30, 1973 a petition was also filed with this court asking that the case be remanded for an evidentiary hearing. The petition was granted per curiam on April 3, 1973 and, on July 24, 1974, after the evidentiary hearing on the PCHA petition, appellant was given the right to file post-verdict motions nunc pro tunc. Such post-verdict motions were filed on July 29, 1974, amended on
[ 241 Pa. Super. Page 112]
September 30, 1974 and denied on July 3, 1975. It is from the denial of the post-verdict motions which appellant now appeals to this court.
Appellant contends on this appeal that his guilty plea was not voluntarily entered because it was motivated by the existence of incriminating evidence obtained by the police in violation of his constitutional rights. Our Supreme Court has held that in order to collaterally attack a guilty plea on such grounds appellant must demonstrate:
"(1) an involuntary pretrial confession (or presumably any other constitutionally infirm incriminating evidence); (2) that the guilty plea was primarily motivated by such evidence; and (3) that defendant was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial." Commonwealth v. Marsh, 440 Pa. 590, 593, 271 A.2d 481, 483 (1970).*fn2
Accordingly, we must now look to the evidence which appellant contends was obtained in violation of his constitutional rights and which, he claims, motivated his guilty plea.
First to be considered is a confession made by appellant on the day of his arrest. Appellant does not contend that the confession was involuntary, but contends that it is nevertheless inadmissible due to a ...