No. 70 March Term, 1977. No. 27 March Term, 1978. (Consolidated Appeals). Appeal from the Judgment of Sentence and Order of the Court of Common Pleas of Lawrence County at No. 375 of 1976, Criminal Division, dated November 2, 1976, and March 6, 1978.
Dominick Motto, New Castle, Court-appointed, for appellant.
Donald E. Williams, Dist. Atty., New Castle, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., concurs in the result.
Appellant pled guilty to murder generally. After a degree of guilt hearing, appellant was convicted of murder of the second degree and on November 2, 1976, was sentenced to life imprisonment. New counsel was appointed to assist appellant in taking an appeal. On August 15, 1977, we remanded to the Court of Common Pleas of Lawrence County for an evidentiary hearing on effectiveness of trial counsel and to allow appellant to file a petition to withdraw his guilty plea as if timely filed. After a consolidated hearing pursuant to both orders, the trial court denied appellant's motion to withdraw his guilty plea and held that trial counsel was not ineffective. Appellant now appeals and we affirm.*fn1
Appellant and an accomplice, Gene Reno, entered the home of the victim, Mrs. Merriman, during the night of April 29-30, 1976, to steal money. During the course of their search of the house, Mrs. Merriman awoke. Appellant inflicted multiple blows upon Mrs. Merriman, resulting in her death. The next night, Reno was arrested on unrelated charges. He later made a statement implicating himself in the burglary and stated that appellant was responsible for Mrs. Merriman's death. On the basis of this statement, an arrest warrant was issued and appellant was apprehended on May 2, 1976.
In Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), we held that inquiry into six areas is mandatory in every guilty plea colloquy.*fn2 Failure to inquire into defendant's understanding of these subjects generally requires reversal. Accord, Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). Our first inquiry is whether appellant understood the nature of the charges against him. Appellant was charged with murder generally. By his plea he subjected himself to conviction for any degree of criminal homicide, including murder of the third degree. Appellant contends that the trial court's explanation of the mens rea element of murder of the third degree was erroneous and therefore inadequately informed him of the nature of the
charges against him. Appellant argues that the trial court incorrectly informed him that legal malice exists where there is a specific intent to kill and thus "could have lead [sic] him to believe that an intentional killing is murder in the third degree instead of murder in the first degree."
The trial court instructed appellant that legal malice was an essential element of third degree murder and that:
"Legal malice consists either of a specific intent to inflict great bodily injury or from a wickedness of disposition, a hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life."
The court then went on to explain:
"Murder in the third degree embodies all of the elements of murder in the first degree with the exception that the mental element need not be a specific intent to kill as it does for murder in the first degree. Do you understand that?
The Court: In summary, if a Defendant is responsible for unlawfully causing the death of the victim and did act with legal malice, either expressed or implied, that will constitute murder in the third degree even though there was no actual intention to injure or kill the particular person who was killed, and even though the death was unintentional or accidental. Murder of the third degree embraces cases where no actual intention to kill exists but where the frame of mind called legal malice prevails. Do you understand that?
This colloquy could not have misled appellant into believing that a specific intent to kill was required for murder of the third degree. The guilty plea colloquy in this respect clearly met the requirements of Commonwealth v. Ingram,
Pa. 198, 316 A.2d 77 (1974) (record must disclose element of offenses charged, outlined in understandable terms) and the comment to Rule 319(a). See also Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978). Compare Commonwealth v. Jasper, 472 Pa. 226, 372 A.2d 395 (1976) (colloquy invalid where defendant led to believe he could be convicted only of voluntary manslaughter).
Appellant next contends that the colloquy failed to set forth a factual basis for the plea. Ascertainment of whether a factual basis exists is a mandatory area of inquiry under Willis, supra. See also North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973); Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973); Pa.R.Crim.P. 319(a); ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § ...