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decided: February 1, 1980.


No. 144 January Term 1978 Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia at No. 947 June Term 1977, under PCHA


Helen T. M. McCaffrey, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Kenneth Gallant, Philadelphia, for appellee.

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

Author: Eagen

[ 487 Pa. Page 495]


On February 11, 1975, Alvin Fernandez plead guilty to murder generally pursuant to a negotiated agreement between his counsel and the district attorney.*fn1 After extended questioning of Fernandez,*fn2 the court accepted the guilty plea, found Fernandez guilty of murder of the third degree, and imposed a prison sentence of five to fifteen years, in accordance with the pre-plea agreement. No request to withdraw the plea was filed, nor was an appeal entered from the judgment.

On July 23, 1976, appellant filed a counseled petition for relief under the Post Conviction Hearing Act [PCHA]. After an evidentiary hearing, relief was denied and this appeal followed.

The sole issue Fernandez presents for review is whether the PCHA court erred in failing to find his plea of guilty invalid due to his lack of the mental capacity to knowingly and intelligently enter a plea.*fn3

The Post Conviction Hearing Act*fn4 and recent decisions of this Court clearly delineate the circumstances under which relief may be obtained under the PCHA. See Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Tunnell, 463 Pa. 462, 345 A.2d 611 (1975).

[ 487 Pa. Page 496]

As we summarized in Commonwealth v. Sherard, supra, 483 Pa. at 188, 394 A.2d at 974-75:

"To be eligible for relief under the PCHA, a petitioner must prove, inter alia:

'That the error resulting in his conviction and sentence has not been . . . waived.'

Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp.1978-79).

"Furthermore, Section 4(b) of the PCHA, 19 P.S. § 1180-4(b) (Supp.1978-79), provides:

'For the purposes of this act, an issue is waived if: '(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and '(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.'

Finally, Section 4(c) of the PCHA, 19 P.S. § 1180-4(c) (Supp.1978-79) provides:

'There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.'"

Fernandez's contention here, that his plea was invalid due to his mental incapacity, is an issue that could have been raised on direct appeal*fn5 and would, thus, be waived unless he rebuts the presumption that his failure to file a direct appeal was knowing and understanding or proves that extraordinary circumstances existed excusing his failure to file a direct appeal.*fn6 Yet, proof that a defendant lacked the mental capacity to "knowingly and intelligently" enter a

[ 487 Pa. Page 497]

    plea of guilty would be sufficient to rebut the presumption of a "knowing and understanding" failure to appeal where the incapacity shown is non-transitory.*fn7 Mental incapacity, sufficient to prevent the entering of a valid guilty plea, would also prevent a "knowing and understanding" failure to appeal.*fn8

In the present case, the PCHA court concluded Fernandez did possess the mental capacity to enter a valid plea of guilt. Our examination of the record persuades us that this conclusion is warranted by the evidence. Fernandez has, therefore, failed to overcome the presumption that his failure to appeal was knowing and understanding. Thus, his claim was waived.

[ 487 Pa. Page 498]

While it is true psychiatric examination indicated Fernandez was apt to act impulsively under stress, this, in itself, does not establish lack of mental capacity. Cf. Commonwealth v. Harris, 431 Pa. 114, 243 A.2d 408 (1968).

The test of an accused's competency to stand trial or enter a guilty plea is

"his ability to comprehend his position as one accused of murder and to cooperate with his counsel in making a rational defense. . . . [S]tated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding and have a rational as well as a factual understanding of the proceedings against him."

Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 495, 227 A.2d 159, 160 (1967).

Fernandez was found capable of acting intelligently*fn9 by the examining psychiatrists. Moreover, it was the opinion of the two psychiatrists, who examined him prior to his plea, that he was competent to stand trial,*fn10 and the second examiner specifically determined that Fernandez understood the possible consequences if found guilty and that he was able to aid his counsel. Furthermore, before accepting the plea, the court, assisted by a Spanish speaking interpreter,

[ 487 Pa. Page 499]

    engaged in an extensive on-the-record colloquy with Fernandez. Fernandez's responses and questions throughout this colloquy indicate he comprehended its substance.

Fernandez asserts that pressure from his attorney to plead guilty led to his incompetency. Though this assertion would be consistent with the psychiatric reports that he might act impulsively under stress, Fernandez has not presented any evidence showing that his trial attorney created unusual pressure to plead guilty, nor did Fernandez's conduct at the plea proceeding indicate that he was acting impulsively or without understanding.

Order affirmed.

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