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COMMONWEALTH PENNSYLVANIA v. KEVIN O'BRIEN (12/21/79)

filed: December 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN O'BRIEN, APPELLANT



Nos. 182 & 183 Special Session Docket, Appeal from the denial of Petition to Withdraw Guilty Pleas and Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, February Session, 1976, Nos. 1495 and 1496.

COUNSEL

John Paul Curran, Philadelphia, for appellant.

Harry Tischler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, Manderino and Cirillo, JJ.*fn* This decision was reached prior to the death of Manderino, J.

Author: Watkins

[ 273 Pa. Super. Page 200]

This is an appeal from the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Kevin O'Brien, from an order entered after a hearing, which denied defendant's Petition to Withdraw his Guilty Plea.

Defendant was arrested on February 6, 1976 for the murder of Lt. Commander John O'Connor, U.S.N., which

[ 273 Pa. Super. Page 201]

    occurred in the victim's apartment in Philadelphia on February 5, 1976. On July 22, 1976, defendant, represented by an attorney who had tried between 100-150 homicide cases during his career, entered an open guilty plea to the charges of murder and robbery. He was convicted of second degree murder and robbery pursuant to his plea, on July 23, 1976, after two days of testimony which consisted of 229 pages of transcribed testimony. A pre-sentence report was then ordered by the trial court and subsequently completed. On November 8, 1976, appellant was sentenced to life imprisonment on the second degree murder conviction and to a consecutive 10-20 year sentence on the robbery conviction. Subsequently, defendant filed a motion to withdraw his guilty plea. After a hearing held on November 9, 1977, at which defendant's father and defendant's trial attorney testified the court refused to grant the petition to withdraw the plea. Defendant then took this appeal.

On appeal, defendant claims that the trial court abused its discretion in refusing to permit him to withdraw his plea alleging that defendant's trial attorney led him to believe that he would be hospitalized if he pled guilty and that therefore defendant's plea was induced by a promise, that defendant was under the influence of drugs at the time of his plea, and that defendant was incompetent of understanding what he was doing when he pled guilty.

On February 26, 1976, at defendant's arraignment, a motion made by defendant's trial counsel requesting a psychiatric evaluation of defendant was granted. A psychiatric evaluation of defendant was then performed and a report thereof made to the trial court. The report stated in conclusion that "both from a psychological and psychiatric point of view this man [the defendant] is competent to stand trial on the present charges." Since the court below had this report available to it at the time of the plea it had sufficient evidence to disregard defendant's assertions to the effect that he was incompetent to stand trial. Relief will be granted in such a situation only to correct a manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592

[ 273 Pa. Super. Page 202]

(1973); Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978). Since defendant did not petition to withdraw his plea until after sentence was imposed and because the court below had before it sufficient evidence of defendant's competency to understand the nature of the proceedings we hold that the court ...


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