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COMMONWEALTH PENNSYLVANIA v. DAVID X. WARREN (03/16/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID X. WARREN, APPELLANT

No. 279 October Term 1978, Appeal under the Post Conviction Hearing Act from the Order dated Oct. 13, 1977, of the Court of Common Pleas of Cumberland County, Criminal, at No. 895 of 1976.

COUNSEL

J. Wesley Oler, Jr., Carlisle, for appellant.

George E. Hoffer, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

Jacobs, President Judge and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, concurs in result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 264 Pa. Super. Page 276]

This is an appeal from an order denying a petition filed under the Post Conviction Hearing Act.*fn1

On November 23, 1976, appellant was charged with possession of an instrument of escape -- an ice pick -- while incarcerated at Camp Hill on other charges.*fn2 On January 1, 1977, the lower court appointed C. Roy Weidner, Jr., to represent appellant. On February 1 appellant entered a plea of guilty before the Honorable Sylvia H. RAMBO, and was sentenced to nine to eighteen months in prison to be served after completion of the sentence he was serving at Camp Hill.

On July 12, 1977, appellant filed a pro se petition under the Post Conviction Hearing Act. On the same day the lower court appointed counsel to assist appellant with his petition. On August 19 appellant filed an amended pro se petition. On August 25 a hearing was held before Judge RAMBO. At the beginning of the hearing counsel for appellant and the district attorney stipulated that the petition should be treated as if it were a petition to withdraw the guilty plea. On October 13 Judge RAMBO filed an

[ 264 Pa. Super. Page 277]

    order denying the petition; in the opinion accompanying the order the judge found that "[appellant] did in fact voluntarily, knowingly and freely enter his plea of guilty." Slip opinion at 4.*fn3

Where the record shows that a proper colloquy was conducted before the defendant entered his guilty plea, see Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the burden is on the defendant to show that the plea was not intelligent and voluntary, Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).

Appellant alleges in his petition that his guilty plea was invalid because: he did not receive a six to twelve month

[ 264 Pa. Super. Page 278]

    sentence as his counsel indicated he would; the plea was partly the product of fear of physical abuse by other prison inmates; and after-discovered evidence showed he had been "set-up".

At the PCHA hearing appellant offered the following testimony in support of his claims. The ice pick was planted in his cell; he was unaware of it until it was found by the guards.*fn4 Weidner, his trial counsel, met with him for only ten minutes before the day his case was heard. During this conference he told Weidner that he was not guilty but had been "set-up" by other prison inmates because he had agreed to testify regarding a prison fight during which three persons were stabbed, and he gave Weidner the name of one person who had information regarding this "set-up". Also, he indicated to Weidner his desire to have a concurrent sentence, and Wiedner said that a concurrent sentence of six to twelve months was possible. At the end of this conference he agreed to plead guilty. On the day he pleaded guilty Weidner talked with him for only ten minutes, and neither his plea nor the possible sentence was discussed. When he was sentenced to nine to eighteen months he was surprised and asked Weidner to explain what had happened. Weidner told him that the sentence would be corrected within thirty to ninety days. Appellant presented no other evidence.*fn5

[ 264 Pa. Super. Page 279]

Weidner testified for the Commonwealth. His testimony contradicted appellant's in many respects. He testified that the conference with appellant lasted approximately one hour. He acknowledged that during the conference appellant mentioned the difficulties with other prison inmates because of his forthcoming testimony regarding the prison fight and gave him the name of one Peter Paul who might have information regarding a "set-up", but he also testified that appellant did not ask him to pursue these matters but instead was concerned that the case be handled as quickly as possible and to this end wished to plead guilty. Weidner also testified that appellant indicated that he hoped to get a concurrent sentence because of the possibility of a furlough during the upcoming Christmas season, but that he told appellant that a concurrent sentence would not be possible and that no plea bargain would be made. Finally, Weidner denied that he told appellant his sentence would be corrected, and testified that after the sentencing he only spoke with appellant regarding his right of appeal.

The Commonwealth also introduced a letter appellant wrote Weidner after their conference. Record Document 24, N.T. PCHA Hearing, Commonwealth Exhibit # 1.*fn6 The letter corroborated Weidner's testimony that the most important factor to appellant was expediting sentencing.*fn7

[ 264 Pa. Super. Page 280]

Judge RAMBO accepted Weidner's testimony, and concluded that appellant had not met his burden of proving that his plea was not intelligent and voluntary. Commonwealth ex rel. West v. Rundle, supra. In her opinion the judge stated:

The testimony presented, the letter from [appellant] to Mr. Weidner, and the colloquy satisfy this court that [appellant] did in fact voluntarily, knowingly and freely enter his plea of guilty. The court is also satisfied that any fear which [appellant] had of his fellow inmates precipitated his having possession of the weapon involved in the charge against him rather than in precipitating his plea.

Slip opinion at 4.

Generally questions of credibility are for the trier of fact, Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970), and absent an abuse of discretion will not be reversed on appeal. Here the lower court's determination of credibility is well supported by the record and shows no abuse of discretion.

Affirmed.


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