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decided: May 1, 1979.


No. 29 March Term, 1978, Appeal from the Order of the Court of Common Pleas of Beaver County, Criminal Division, in No. 1066 of 1975.


John J. Petrush, McClain, Petrush, Young & Miller (Court-appointed), Beaver Falls, for appellant.

John Lee Brown, Jr., Asst. Dist. Atty., Beaver, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.

Author: Roberts

[ 485 Pa. Page 138]


On April 1, 1976, appellant pleaded guilty to murder of the second degree and was sentenced to life imprisonment. No appeal was taken from the judgment of sentence. In January of 1977, appellant filed a pro se petition under the Post Conviction Hearing Act, 19 P.S. §§ 1180-1 et seq., seeking to set aside his guilty plea. Counsel was appointed and an amended petition was filed. After an evidentiary hearing, the Court of Common Pleas of Beaver County denied the petition. This appeal followed.

[ 485 Pa. Page 139]

Ralph F. Aumack was found dead in his home on the afternoon of October 30, 1975. An autopsy revealed that his death was caused by a gunshot wound to the head. Appellant, then fifteen years of age, was arrested on the evening of the next day. He was given Miranda warnings by police and without consulting an interested adult admitted that he shot the victim.

According to appellant's confession the victim caught appellant in the act of burglarizing the victim's home. After the victim phoned the police, appellant attempted to flee and a struggle ensued. The victim knocked appellant down and began choking him. Appellant then pulled a gun from his pocket and shot the victim. After taking the victim's wallet and other articles, appellant left the scene in the victim's car.

On November 3, 1975, an information was filed against appellant charging him with murder of the first and second degree. The Commonwealth possessed evidence that, contrary to appellant's confession, appellant had planned the killing. The Commonwealth agreed that if appellant pleaded guilty to murder of the second degree he would not be tried for murder of the first degree. Appellant entered his guilty plea in accordance with this plea agreement.

Appellant contends that the post-conviction hearing court erred in refusing to set aside his guilty plea. He argues that he is entitled to collateral relief on three grounds: (1) that his plea was the result of an illegal confession and that his counsel was ineffective in failing to move for its suppression; (2) that although appellant stated a defense of self-protection during his guilty plea colloquy the record of that colloquy fails to demonstrate a knowing waiver of that defense; and (3) that trial counsel's failure to advise appellant of the availability of the defense of self-protection rendered the plea involuntary, unknowing, and unintelligent. Review of appellant's claims satisfies us that they are

[ 485 Pa. Page 140]

    unmeritorious. We therefore affirm the post-conviction hearing court's denial of the petition.*fn1


Appellant argues first that he should be permitted to withdraw his guilty plea because it was primarily motivated by a constitutionally defective confession and was entered on the ineffective advice of counsel.*fn2 The post-conviction hearing court agreed with appellant that his confession was illegally obtained because he was not afforded an opportunity to consult with an interested adult. E. g., Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975). The post-conviction hearing court found, however, that appellant's guilty plea was not primarily motivated by his confession.*fn3

The record before the court revealed that the murder weapon had been identified as a gun given to appellant on October 29, 1975, and that police had a note written by appellant prior to the killing expressing his intention to kill the victim. In addition, a co-participant in the burglary was able to verify the contents of the note and also to testify that when he left the scene of the burglary appellant remained in the victim's home. Appellant was aware of this damaging evidence when he entered his guilty plea and knew that by accepting the plea agreement he avoided a

[ 485 Pa. Page 141]

    charge of murder of the first degree.*fn4 Although appellant testified at his post-conviction hearing that his confession was the major factor which led him to plead guilty and although defense counsel testified that the confession was an "important factor" in his decision to recommend the plea, the post-conviction hearing court found that other evidence and circumstances motivated the guilty plea. This determination of the court is supported by the record.*fn5


Appellant further contends that his testimony at the guilty plea hearing made out a complete defense of self-protection under section 505 of the Crimes Code, 18 Pa.C.S.A. §§ 101 et seq. He argues that because the record of that hearing fails to show that he knowingly waived the defense, his plea was not voluntary, knowing, and intelligent and must now be set aside. In Commonwealth v. Rodgers, 465 Pa. 379, 383, 350 A.2d 815, 818 (1976), this Court stated:

"We have often held that when a guilty plea is accompanied by the assertion of facts which make out a defense to the crimes charged, the plea may not be accepted unless the discrepancy is resolved. The defendant must be aware, and the record must show that he is aware, that his defense cannot be considered when he enters a guilty plea. The record must affirmatively demonstrate that he knows that by pleading guilty he waives the opportunity to

[ 485 Pa. Page 142]

    assert facts which may establish the defense of self-defense."

Accord, Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970). Here, however, appellant's plea may not be set aside, because his testimony did not recite facts which would constitute a defense under section 505.

At his guilty plea hearing appellant admitted that on October 29, 1975, he burglarized the victim's home and shot the victim:

"Q. Do you understand that charge [murder]?

A. Yes.

Q. What does it mean to you?

A. It means I shot him.

Q. For no reason?

A. I was in his house when he come home. He caught me.

Q. He caught you doing what?

A. Caught me in his house.

Q. What were you doing there?

A. Burglarizing."

After further questioning by the court, appellant testified to the following events:

"Well, I hid in the cellarway, and he come in the house, And I guess he walked through the house, and he found me. I tired [sic] to get away. He closed the door on me, and he called the police, told them to come to his house right away. And as soon as he hung up, I tried to get away again. I couldn't get out the back door. And he come and started fighting. And he started choking me. That's when I shot him."

This testimony does not support or even suggest that at the time appellant shot the victim he believed the victim was threatening him with unlawful deadly force. Rather, it merely describes appellant's unlawful use of deadly force during a struggle with the unarmed homeowner precipitated by appellant's attempt to flee after the police had been

[ 485 Pa. Page 143]

    called. It is, of course, beyond dispute that a killing caused by a burglar in the course of an attempt to flee the scene of the burglary constitutes murder of the second degree.*fn6 In the circumstances of this case where appellant's degree of guilt was limited by agreement to murder of the second degree, there was no need for any further on-the-record inquiry.


Appellant also claims that his guilty plea was involuntary because his trial counsel advised him that self-protection was not available as a defense to murder of the second degree. Appellant has, however, failed to show that counsel's advice lacked a reasonable basis designed to advance appellant's interest.

This Court stated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967):

"We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined

[ 485 Pa. Page 144]

    that trial counsel's decisions had any reasonable basis."

See Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973). Any attempt by appellant to defend against a charge of murder of the second degree on a self-protection theory would have exposed him to prosecution for murder of the first degree.*fn7 As the hearing court determined, "[d]efense counsel felt that since there was possible evidence of first degree murder, second degree murder was a proper plea." Defense counsel's testimony at the PCHA hearing further establishes that his advice that appellant could not use self-protection as a defense was based on a sound and reasonable consideration of many circumstances including appellant's description of the events leading to the killing.*fn8 It must be concluded that counsel's assistance here satisfied the standards of Washington and indeed constituted effective assistance. This record plainly refutes the claim that appellant's guilty plea was involuntary, unknowing and unintelligent.

[ 485 Pa. Page 145]

Appellant's petition for PCHA relief was properly denied.

Order affirmed.

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