No. 2448 October Term, 1976, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 395 September Sessions, 1971.
Ronald F. Kidd, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.
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This appeal arises from an order entered in the court below denying appellant's requested relief under the Post Conviction Hearing Act (PCHA).*fn1 Appellant's basic assertions are that a constitutionally infirm confession caused him to plead guilty; that counsel was ineffective for failing to pursue a suppression hearing; and that counsel was ineffective for advising him to plead under the circumstances. It is appellant's position that he should be permitted then to withdraw the plea. For the reasons set forth herein, we affirm the order of the court below.
On June 2, 1971, a First Federal Savings and Loan branch in Philadelphia was the scene of an attempted robbery. One Frederick Davis, dressed as a woman, entered the bank and handed the teller a note ordering her to hand over money. Appellant had written the demand note, which stated, "Don't be apprehensive, smile. Put fives, tens, and twenties in the bag." While Davis was robbing the bank, his wife, who entered the bank with him, was to open an account. Davis abandoned the scheme, however, when the bank manager came into view; appellant, who had been driving the getaway car around the block, also decided to flee when he spotted police near the scene. F.B.I. and local police investigations culminated in appellant's arrest, and during interrogation, he admitted participation in the episode.
On May 26, 1972, appellant pleaded guilty to a charge of aggravated robbery.*fn2 A second charge, criminal conspiracy,*fn3
[ 265 Pa. Super. Page 38]
was nolle prossed as a result of the plea agreement. Appellant was sentenced to a term of imprisonment of from two to ten years, but, on the Commonwealth's recommendation, sentence was suspended, and appellant was placed on probation for a period of ten years. On December 10, 1973, appellant was convicted of another offense while on probation. Probation was subsequently revoked, and appellant was ordered to serve the originally imposed sentence. Appellant's first PCHA petition was denied on July 11, 1974, without a hearing or appointment of counsel. On appeal, this court reversed the lower court and remanded the case, directing that appellant be permitted to file an amended petition with aid of counsel. Commonwealth v. Lane, 232 Pa. Super. 729, 334 A.2d 309 (1975). When appellant failed to appear at the scheduled hearing on that petition, the court dismissed it on November 6, 1975. Appellant filed another petition on January 9, 1976, and after a hearing thereon, relief was denied, and appellant filed the instant appeal.
When one challenges the validity of a guilty plea claiming that it was motivated by a constitutionally infirm confession, he must establish: (1) the involuntariness of the pre-trial confession; (2) the fact that the plea was primarily motivated by that evidence; and (3) the incompetence of counsel's advice that the defendant plead under the circumstances, rather than stand trial. Commonwealth v. Kittreles, 465 Pa. 431, 350 A.2d 842 (1976); Commonwealth v. Lofton, 448 Pa. 184, 292 A.2d 327 (1972); Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970). When one of the three elements is not satisfactorily established, withdrawal of the plea will be denied. Commonwealth v. Butler, 454 Pa. 95, 309 A.2d 720 (1973).
Appellant contends that he was a heavy user of heroin at the time. He asserts that he was going through acute withdrawal during the nineteen to twenty-one hours that intervened between his arrest and his statement. Without stating its reasons for so determining, ...