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COMMONWEALTH PENNSYLVANIA v. HOWARD EDWIN MAY (07/05/79)

SUPREME COURT OF PENNSYLVANIA


decided: July 5, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HOWARD EDWIN MAY, APPELLANT

Nos. 257 and 672 January Term 1977, Appeals from Judgments of Sentence of the Court of Common Pleas of Philadelphia, Criminal Division, Nos. 994 and 996 October Term 1977

COUNSEL

Norman C. Henss, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for appellee.

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

Author: Eagen

[ 485 Pa. Page 372]

OPINION OF THE COURT

On December 15, 1976, the appellant, Howard Edwin May, tendered pleas of guilt to murder of the second degree and to robbery. Following an extensive colloquy, the guilty pleas were accepted by the trial judge and judgment of sentence of life imprisonment on the murder conviction and a concurrent judgment of sentence of ten to twenty years imprisonment on the robbery conviction were imposed.

May filed an appeal from the judgment of sentence imposed on the murder conviction in this Court. An appeal from the sentence imposed on the robbery conviction was

[ 485 Pa. Page 373]

    filed in the Superior Court and certified here. After the appeals were consolidated, May petitioned this Court to remand the matter to the trial court to enable him to file a motion for leave to withdraw the guilty plea.*fn1 We granted the petition "for the purpose stated . . . ."

On remand, the trial court conducted an evidentiary hearing and, as a result, ruled May was not entitled to withdraw his guilty pleas.*fn2 From the judgments of sentence, May now appeals.

The sole issue properly preserved for review is whether May's pleas were knowingly and intelligently entered because he allegedly did not fully understand the significance of the sentence to be imposed.*fn3 Specifically, he claims it

[ 485 Pa. Page 374]

    was his understanding that, as a result of a plea bargain, he was to receive a maximum prison sentence of thirteen years and not a life sentence.

At the evidentiary hearing conducted on remand, May testified that he was promised by the Commonwealth and his defense counsel that he would receive a thirteen year prison sentence if he plead guilty; that he agreed to enter the pleas on that basis; and, that he would not have entered the pleas had he thought a judgment of sentence of life imprisonment would be imposed. May further testified that he did not question the trial judge during the guilty plea colloquy when he was informed on the record that a judgment of sentence of life imprisonment on the murder conviction and a concurrent judgment of sentence of ten to twenty years imprisonment on the robbery conviction would be imposed*fn4 because ". . . everytime before [he] answered [he] looked at [his] counselor . . . and . . . received a nod to say, yes, or . . . to say, no. If [he] did not understand it, not to worry about it, that that would be explained to [him] afterwards." He testified he responded to the trial judge during the guilty plea colloquy according to defense counsel's prompting. Finally, May testified that he lied to the trial judge when he was asked whether he understood he would receive a life sentence for the murder

[ 485 Pa. Page 375]

    and a concurrent prison sentence of ten to twenty years for the robbery and that he lied to the trial judge again when he was asked whether he "understood everything."

In response to May's testimony, both defense counsel and the prosecutor who negotiated the pleas vigorously denied ever having promised May he would receive the lesser prison sentence. Both testified May was also informed off the record several times during the guilty plea negotiations that the life imprisonment sentence and ten to twenty year sentence would be imposed as a result of the pleas.

Further, in response to May's testimony that his answers during the guilty plea colloquy were the result of defense counsel's prompting, defense counsel testified he did not signal or prompt May during the colloquy. The trial judge who conducted the guilty plea colloquy and accepted the pleas also noted during the evidentiary hearing that he had observed no such conduct at that time. The record further reveals May did, in fact, question the trial judge during the guilty plea colloquy. This further evidences May was not "prompted" at that time.

After hearing the testimony and reviewing the record, the trial court concluded that May's testimony was "incredible and totally unbelievable" and that "the alleged thirteen year sentence was never mentioned as part of the plea negotiations at any time." It is for the hearing judge to resolve issues of credibility, Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977); Commonwealth v. Hosack, 459 Pa. 27, 326 A.2d 352 (1976); Commonwealth v. Davis, 452 Pa. 369, 306 A.2d 897 (1973), and, in our view, the record amply supports the court's finding that the pleas were knowingly and intelligently entered.

Judgments of sentence affirmed.


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