No. 31 May Term, 1978, Appeal from the Order denying relief under the Post Conviction Hearing Act, entered by the Court of Common Pleas of York County, Pennsylvania, at No. 709 May Session, 1974.
Nathaniel W. Boyd, IV, Bruce C. Bankenstein, York, for appellant.
John C. Uhler, Dist. Atty., Sheryl Ann Dorney, York, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Larsen, J., filed a dissenting opinion.
In this appeal from denial of relief under the Post Conviction Hearing Act,*fn1 appellant, Lewis J. Hare, Jr., asserts that he should be permitted to withdraw his guilty plea to murder generally because counsel on direct appeal was ineffective for failing to raise as error that the trial court, prior to accepting appellant's guilty plea, did not explain the nature of malice at the guilty plea colloquy. We agree, reverse the order of the PCHA court and remand to afford appellant an opportunity to withdraw his plea.*fn2
Appellant was indicted for the murder of Jesse Ingram. On March 24, 1975, appellant, assisted by counsel, entered a plea of guilty to murder generally and, after a colloquy, the trial court accepted the plea. The court then held a degree of guilt hearing, found appellant guilty of murder of the first degree and sentenced him to life imprisonment. Subsequently,
the court appointed new counsel for the purpose of filing post-verdict motions and motions in arrest of judgment nunc pro tunc. Counsel first filed a post-verdict application, alleging that trial counsel's ineffective assistance had coerced appellant into pleading guilty. After denial of the application, counsel, on November 10, 1975, filed post-verdict motions. The court denied the motions. Represented by the same counsel, appellant filed a direct appeal to this Court, raising the same grounds of ineffective assistance of trial counsel raised in the post-verdict application. On December 21, 1977 the judgment of sentence was affirmed. See Commonwealth v. Hare, 475 Pa. 234, 380 A.2d 330 (1977) (Opinion of Packel, J.; Eagen, C. J., O'Brien, Pomeroy & Nix, JJ., concurring in the result; Roberts & Manderino, JJ., filed dissenting opinions).
On April 20, 1978, appellant filed a petition under the Post Conviction Hearing Act. The PCHA court appointed new counsel, who supplemented appellant's petition. The amended petition alleged, inter alia, that appellate counsel had been ineffective for failing to raise the inadequacy of the guilty plea colloquy which did not properly inform appellant of the element of malice. The PCHA court denied relief and this appeal followed.
The PCHA court held that any alleged defect in the plea colloquy had been finally litigated on direct appeal and that appellant could not attempt to relitigate the validity of the colloquy by alleging ineffective ...