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COMMONWEALTH PENNSYLVANIA v. DONALD W. UNGER A/K/A DONALD WAYNE UNGER (10/31/80)

decided: October 31, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DONALD W. UNGER A/K/A DONALD WAYNE UNGER, APPELLANT



No. 80-1-79, Appeal from the Order entered on November 28, 1979, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC7608294 and CC7608400, denying post-conviction relief.

COUNSEL

William B. Guffey, Jr., Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ. Roberts, J., filed a concurring opinion. Nix and Flaherty, JJ., concur in the result.

Author: Larsen

[ 494 Pa. Page 594]

OPINION OF THE COURT

In 1976, appellant and an accomplice drove into a gas station located on Saw Mill Run Boulevard in Pittsburgh, Pennsylvania, drew firearms, and forced the manager and a patron to lie face down on the garage floor. Despite compliance with their demands, appellant, after emptying the cash register, fired a single rifle shot into the back of the manager, killing him instantly. The accomplice fired several pistol shots into the patron's back, rendering him a paraplegic. Appellant was charged with murder, armed robbery and other counts, and he confessed his actions to the police.

In 1977, appellant, represented by court appointed trial counsel, pleaded guilty to these charges. A degree of guilt hearing was held at which the trial court conducted an on

[ 494 Pa. Page 595]

    the record colloquy, after which the trial court accepted the guilty plea. A three judge panel unanimously agreed that the appellant was guilty of murder in the first degree, and he was sentenced to life imprisonment. After sentencing, trial counsel was excused and the public defender was appointed as appellate counsel. No direct appeal was taken.

In 1979, appellant sought relief under the Post Conviction Hearing Act (PCHA) alleging that: (1) the guilty plea was not lawfully entered; (2) trial counsel was ineffective in failing to present an intoxication defense; and (3) appellate counsel was ineffective for failing to preserve appellant's rights on appeal.*fn1 The PCHA court ordered that relief be denied, and this appeal followed.

Appellant contends that the plea of guilty was not knowingly, intelligently, and voluntarily entered because the trial counsel threatened that he would withdraw unless the appellant entered a guilty plea. Counsel testified that while he strongly urged the guilty plea, the decision whether or not to plead guilty was left to the appellant. The PCHA court resolved the issue of credibility against the appellant, and decided that the extensive colloquy conducted by the trial court indicated a knowing, intelligent, and voluntary guilty plea.*fn2 These findings are supported by the record and will not be disturbed on appeal. Commonwealth v. Waddy, 463 Pa. 426, 345 A.2d 179 (1975).

Appellant next claims that trial counsel was ineffective in failing to present an intoxication defense. A guilty plea waives all non-jurisdictional defects and defenses. ...


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