Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



decided: December 23, 1977.



Martin J. Kilstein, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Adrian L. DiLuzio, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., concurs in the result.

Author: Roberts

[ 476 Pa. Page 85]


In this appeal from a denial of relief under the Post Conviction Hearing Act,*fn1 appellant contends that 1) trial counsel was ineffective because he did not adequately advise appellant of his appellate rights before recommending a plea

[ 476 Pa. Page 86]

    of guilty; and 2) the trial court erred in accepting appellant's guilty plea without first conducting an adequate colloquy to explain the nature of the charges and the scope of the rights appellant was surrendering. Because the first contention lacks merit and the second contention has not been properly preserved for our review, we affirm.

On December 24, 1971, a 14 year old male was fatally stabbed outside a restaurant in Philadelphia. On April 7, 1972, while in custody on an unrelated matter, appellant was transported by members of the Philadelphia Police Department to the Police Administration Building for questioning in connection with the fatal stabbing. At the time of the questioning, appellant was sixteen years old. Despite police efforts to contact appellant's mother, neither appellant's parents nor his attorney were present when appellant waived his Miranda rights*fn2 and made an incriminating statement. Appellant was subsequently indicted for murder, aggravated robbery, carrying a concealed deadly weapon and conspiracy. A pre-trial motion to suppress appellant's statement, argued by appellant's trial counsel on September 25, 1972, was denied and the statement ruled admissible.

Appellant's jury trial commenced on September 10, 1973. On the third day of trial, a plea bargain was made and appellant changed his plea to guilty on the murder indictment. The Commonwealth certified that the charge rose no higher than murder of the second degree, made a recommendation that the sentence be no greater than six to fifteen years and run consecutively to an unrelated two to ten year sentence for second degree murder appellant was currently serving, and nol prossed the indictments on the other three charges. After a colloquy on the record, the court accepted the guilty plea and imposed a sentence of not less than six nor more than fifteen years imprisonment in the State Correctional Institution at Graterford, the location requested

[ 476 Pa. Page 87]

    by appellant. Appellant was advised of his appellate rights and waived post-verdict motions. No direct appeal was taken.

On October 2, 1974, appellant filed an uncounseled petition under the Post Conviction Hearing Act which was dismissed without appointment of counsel or a hearing. Upon appeal, this Court remanded the record for a determination of whether appellant's request for appointment of PCHA counsel should be granted and to allow the filing of an amended petition. Commonwealth v. Triplett, 467 Pa. 510, 359 A.2d 392 (1976). Following the appointment of counsel, an amended petition for post-conviction relief was filed. After an evidentiary hearing, the PCHA court denied relief, finding that 1) appellant's pre-trial confession was voluntary, 2) trial counsel competently advised appellant concerning the change of plea, and 3) the guilty plea was not primarily motivated by appellant's confession. This appeal followed.*fn3

When appellant entered his plea of guilty, he waived his right to challenge anything but the legality of his sentence and the voluntariness of his plea. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973). Accordingly, appellant waived his right to challenge in this appeal the voluntariness of his statement.*fn4 In an apparent attempt to avoid this waiver and have this Court consider the correctness of the suppression court's ruling, appellant challenges the effectiveness of his trial counsel. He asserts that trial counsel failed to advise him that, if found guilty following trial, appellant could attack on appeal the admissibility of

[ 476 Pa. Page 88]

    his statement and neglected to evaluate with appellant the likelihood of a successful appeal.*fn5

Appellant argues at length the merits of the asserted McCutchen*fn6 and Futch*fn7 violations which he maintains rendered his statement inadmissible. Our inquiry however must be confined to determining whether the particular course chosen by trial counsel had some reasonable basis designed to effectuate appellant's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Trial counsel spoke with appellant five or six times prior to trial. He filed and argued a motion to suppress appellant's statement, discussing the merits of the motion with appellant. After the motion was denied, counsel knew appellant's statement would be admissible at trial and could lead to a conviction of murder of the first or second degree. Trial counsel advised appellant that his prior plea of guilty to murder generally in an unrelated case increased the likelihood of a severe sentence following a conviction after trial. Trial counsel testified that his primary concern was to obtain the most lenient sentence possible. This concern was shared by appellant who testified that he decided to plead guilty because "he did not want to do a lot of time." Indeed, when trial counsel first informed appellant of an offer by the Commonwealth to recommend an eight to twenty year sentence, appellant said the sentence was too great; counsel renegotiated and obtained an offer of six to fifteen years, the sentence subsequently imposed. In addition, pursuant to the plea bargain negotiated by counsel, the Commonwealth certified that the murder rose no higher

[ 476 Pa. Page 89]

    than second degree and nol prossed the charges of aggravated robbery, carrying a concealed deadly weapon and conspiracy.

The test for competency "is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record," but whether counsel's assessment of appellant's case and his advice were reasonable. Commonwealth ex rel. Washington v. Maroney, supra at 604, 235 A.2d at 352-53. At the time appellant's motion to suppress was decided and at the time his plea of guilty was entered, appellant's youth was but one factor to be considered in determining whether the waiver of Miranda rights was knowing and his statement voluntary. Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) (plurality opinion); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1973); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971). Likewise, the delay between arrest and arraignment was but one factor to be considered in determining whether statements must be suppressed because of the delay. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). We cannot impose upon trial counsel the qualities of a seer and fault him for not foreseeing that this Court would finally adopt per se rules as to juvenile waivers of Miranda rights, Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), and delay between arrest and arraignment, Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977).*fn8 For this reason, we examine counsel's stewardship under the standards as they existed at the time of his action, Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973); Commonwealth v. Garrett, supra; and counsel will not be deemed ineffective for failing to predict future developments in the

[ 476 Pa. Page 90]

    law. See Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971).

In light of the circumstances, it is apparent that trial counsel's recommendation to appellant that he plead guilty was a reasonable course of action. See Commonwealth v. Henderson, 441 Pa. 255, 272 A.2d 182 (1971). Thus, trial counsel cannot be deemed ineffective. Commonwealth ex rel. Washington v. Maroney, supra.*fn9

Appellant's second contention, that the trial court erred in accepting appellant's guilty plea without first conducting an adequate colloquy, was not raised at the PCHA hearing. The well-established doctrine that appellate courts will not entertain arguments raised for the first time on appeal, Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), applies with equal force to appeals from collateral hearings. Commonwealth v. Henderson, supra; Commonwealth v. James, 440 Pa. 205, 269 A.2d 898 (1970); Commonwealth v. Payton, 431 Pa. 105, 244 A.2d 644 (1968). Accordingly, this issue has been waived.*fn10

Order affirmed.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.