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decided: July 14, 1978.


No. 43 March Term 1977 Appeal from the Judgment of Sentence and Orders of the Court of Common Pleas, Criminal Division, of Westmoreland County, at N6. 76 April Term, 1959 (Q.S.) and No. 9 July Term, 1959 (Oyer & Terminer) under PCHA.


Rabe F. Marsh, III, Greensburg, Court-appointed, for appellant.

Albert M. Nichols, Dist. Atty., Patrick H. Mahady, Asst. Dist. Atty., Greensburg, for appellee.

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

Author: Eagen

[ 479 Pa. Page 560]


This is an appeal from orders of the Court of Common Pleas of Westmoreland County dated September 15, 1976. The case has a unique procedural history.

Charles Henry Brewer was indicted for the murder of his two-year-old stepdaughter, who died on January 19, 1959. On August 31, 1959, Brewer, who was represented by court-appointed counsel, entered a plea of not guilty and trial by jury began on that date. On the third day of trial, after the Commonwealth had presented the testimony of eleven witnesses, Brewer entered a plea of guilty to the charge of murder generally. The guilty plea was accepted on the same day and the jury was discharged. On the following day the court conducted a hearing to determine the degree

[ 479 Pa. Page 561]

    of guilt. During this hearing, the Commonwealth introduced a pretrial statement by Brewer and the defense introduced testimony of four witnesses in mitigation of Brewer's conduct. The court found Brewer guilty of murder of the first degree and imposed a sentence of life imprisonment. Brewer was not advised of his right to appeal and no appeal was taken.

After serving more than eleven years in prison, Brewer, represented by the public defender, filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966 P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1977-78) setting forth six reasons in support of his claim for relief, including the obstruction of his right to appeal. By order of the PCHA court dated November 2, 1970, Brewer was granted the right to appeal from his plea of guilty and the judgment of sentence nunc pro tunc. The PCHA court did not address Brewer's remaining complaints.

No appeal was filed; instead on November 6, 1970, the public defender filed a motion to withdraw Brewer's guilty plea and to vacate the sentence. A series of reasons were asserted in support of the motion. On February 26, 1971, the public defender filed an amended motion to vacate the sentence alleging that the Commonwealth did not meet its burden of proof to raise the crime from murder of the second degree to murder of the first degree.

On August 27, 1971, a court en banc dismissed Brewer's motion of February 26, 1971, to vacate sentence ruling there was sufficient evidence to support a conviction of murder of the first degree. The court failed to rule on Brewer's motion to withdraw his guilty plea or to decide the issues raised therein. An appeal was not perfected from this order although Brewer directed his attorney to appeal.*fn1

[ 479 Pa. Page 562]

On March 25, 1976, Brewer filed a second PCHA petition. Following a counseled hearing on that petition the PCHA court concluded it had inadvertently overlooked Brewer's motion of November 6, 1970, to withdraw the guilty plea, so it then proceeded to consider and dispose of that motion. Permission to withdraw the guilty plea was denied. At the same time, the court considered the petitions seeking post conviction relief and entered an order denying such relief. This appeal challenges the orders of September 15, 1976, denying the motion to withdraw the guilty plea and denying the request for post conviction relief.

We have concluded the circumstances evidenced by the record dictate that we ignore procedural irregularities and afford Brewer a fair and complete appellate review of the errors he says occurred in the prosecution which resulted in his conviction. Cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

First, Brewer maintains the trial court should have rejected his guilty plea because during the proceedings to determine the degree of guilt, testimony developed which demonstrated he had a complete defense to the charge of homicide. Cf. Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970).

The testimony alluded to is that of a Dr. Altman, called by the defense at the hearing conducted to establish the degree of guilt in an effort to mitigate Brewer's criminal responsibility.

On direct examination Dr. Altman testified in part as follows:

"Q. What could possibly be a diagnosis in an individual such as this?

"A. Psychotic . . .

I would say he was definitely emotionally immature, he probably has the immaturity of a child in him; he didn't know the ...

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