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decided: December 1, 1977.



John H. Chronister, Public Defender, York, for appellant.

Donald L. Reihart, Dist. Atty., York, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Eagen, C. J., and Pomeroy, O'Brien and Nix, JJ., concur in the result. Roberts and Manderino, JJ., filed dissenting opinions.

Author: PACKEL

[ 475 Pa. Page 236]


The appellant contends that his request to withdraw his plea of guilty to murder should have been granted because

[ 475 Pa. Page 237]

    the plea was induced by the improper conduct of his attorney.*fn* The appellant was accused of murder committed on June 9, 1974. He was indicted on July 15, 1974. He pled not guilty. His attorney, without success, made a whole series of pre-trial applications for: commitment as a mentally disabled person; suppression of evidence; reduction of bail; change of venue; habeas corpus; and striking the array of jurors.

On March 24, 1975, appellant's attorney had a conference with the district attorney, who stated that he planned to ask for the death penalty. The attorney discussed this with the appellant and his parents. The appellant was twenty years old, had gone to the ninth grade and was able to read and write. After several discussions in the morning and afternoon of that day, a plea bargain was entered into under which the district attorney would state to the court that the case did not call for the death penalty and the appellant would plead guilty. The district attorney did make the statement to the court and, after an extensive and thorough colloquy, the appellant pled guilty. He was subsequently found to be guilty of murder in the first degree and was sentenced to life imprisonment.

The appellant admittedly pled guilty to avoid the death penalty but claims that the improper counseling of his attorney induced the plea so that it was not made intelligently and willingly. He asserts that "he was stunned, his judgment impaired and his will overborne" by the conduct of his counsel on the day of trial.

Although the criminal procedural rules deal with the withdrawal of the plea of guilty only before trial, Pa.R.Crim.P. 320, the right under appropriate circumstances, even after sentencing, is implicit in the Sixth Amendment of the federal Constitution and in Article I, Section 9, of the Pennsylvania Constitution, under the guarantee of a right to a jury trial. Manifest injustice such as unfair conduct

[ 475 Pa. Page 238]

    leading to a guilty plea by active inducement, or by inaction when there is a duty to speak, is a valid ground for withdrawal of the plea. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Kelsey v. United States, 484 F.2d 1198 (3d Cir. 1973). Inducement by fear of the death penalty or by the potential use of an invalid confession or other inadmissible evidence, does not give a defendant the right to withdraw a guilty plea unless counsel failed to give effective assistance. Commonwealth v. Melton, 465 Pa. 529, 351 A.2d 221 (1976); Commonwealth ex rel. Henderson v. Maroney, 448 Pa. 411, 293 A.2d 64 (1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 922, 34 L.Ed.2d 701 (1973). In this appeal complaint is made, in the main, not of what trial counsel did, but of what he allegedly failed to do.

In the court below appellant's post-trial counsel filed a petition to withdraw the plea of guilty on the ground that the "plea of guilty was unlawfully induced by representations of his attorney which were either false or misleading." After hearing testimony on the petition, the court below refused to allow the withdrawal of the guilty plea, stating:

"In short, we conclude that the guilty plea was not induced by false or misleading representations of counsel but was a knowing and intelligent response to the risk involved."

In final analysis, the relief sought was based upon a claim of false or misleading representations and, hence, the issues should be reviewed from that standpoint.

Five claims are made. First, is the failure of counsel to discuss the possibility of the death penalty until the day of trial. Second, is the attorney's statement that unless the appellant pled guilty he would get the death penalty. Both of these points are negatived by an express finding of the court below, supported by the testimony at the hearing to change the plea, that the possibility of the death penalty had received prior discussion and that what counsel said was that the death penalty could be imposed.

Third, is the claim that the death penalty should not have been given consideration on a ...

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