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COMMONWEALTH PENNSYLVANIA v. KENNETH SOUDER (07/17/79)

submitted: July 17, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH SOUDER, APPELLANT



No. 269 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas, of Luzerne County, Pennsylvania, denying relief under the Post Conviction Hearing Act dated June 21, 1978 at No. 37, September, 1962.

COUNSEL

Jonathan Blum, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: Montgomery

[ 270 Pa. Super. Page 274]

Appellant entered a plea of guilty in 1962 to First Degree Murder and was sentenced to life imprisonment. At that time, a direct appeal was filed resulting in an affirmance of the judgment of sentence. On March 10, 1978, appellant filed a petition under the Post Conviction Hearing Act*fn1 wherein he averred ineffective assistance of counsel and the invalidity of his guilty plea. An evidentiary hearing was thereafter held with appellant being represented by counsel, and relief was denied.

The facts surrounding petitioner's original conviction are as follows: In April, 1962, the appellant and an accomplice robbed a gasoline station in Luzerne County. The appellant killed the attendant during the course of the robbery. Ten days after the crime, he enlisted in the Army. Shortly thereafter, the accomplice was apprehended and he gave a statement implicating appellant in the crime. Local police travelled to Fort Gordon, Georgia, and took appellant into custody, and he waived extradition. During a three-day drive from Georgia to Pennsylvania, appellant admitted his involvement in the crime and his commission of the murder. He signed a written confession to this effect at a police station in Virginia. He was not represented by counsel at this time. However, once in Pennsylvania, and approximately two months before his scheduled trial, two court appointed attorneys were assigned to represent him. Following

[ 270 Pa. Super. Page 275]

    his plea of guilty, appellant spent several years in Fairview State Hospital, and in 1971, he was transferred, by court order, to the State Correctional Institution at Pittsburgh to continue serving his sentence.

On this appeal, petitioner alleges several allegations of constitutional violations; however we shall only review those which directly relate to the ineffective assistance of counsel claim, and the voluntariness of his guilty plea. All other grounds have been waived by petitioner's failure to either raise them in his direct appeal or in his petition and counseled hearing below.

Appellant alleges that the two attorneys who represented him at the time of his plea were ineffective for failing to inform him of his opportunity to refute his confession. It is suggested that this challenge is based on the involuntariness of his confession in that it was uncounselled and allegedly the product of coercion. Appellant by way of argument relies on the standards established by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There is no question that at the time of appellant's confession and plea in 1962, Miranda had not yet been decided and is therefore not applicable to the instant case. Appellant argues that even though the per se rules of Miranda are not applicable, the basic rationale underlying the decision in that case should apply in the interests of fairness and justice. This argument might have been appropriate if the issue of the voluntariness of his confession had been properly preserved for our review; but it is wholly inappropriate as a test in determining the effectiveness of counsels' assistance at the time of conviction. Rather, a review of counsels' stewardship is based on the standard enunciated by the case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), that "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

[ 270 Pa. Super. Page 276]

    a hindsight evaluation of the record." Further, counsels' stewardship must be examined by the standards as they existed at the time of their action, and they will not be deemed ineffective for failing to predict future developments in ...


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