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decided: December 17, 1981.


No. 80-3-522, Appeal from the Denial of Post-Conviction Relief by Order of Judge Edward Blake dated April 11, 1980, as of Bill of Indictments No. 597 June Term, 1975, in the Court of Common Pleas of Philadelphia.


Norris E. Gelman, Philadelphia, court-appointed, for appellant.

Robert B. Lawler, Chief, Appeals Div., Gail Thachery, Philadelphia, for the Commonwealth.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., filed a concurring opinion.

Author: Roberts

[ 496 Pa. Page 487]


This is an appeal from an order of the Court of Common Pleas of Philadelphia, which denied appellant's petition for post-conviction relief following an evidentiary hearing. In denying the petition, the PCHA court rejected appellant's claim that his guilty plea had been induced by ineffective assistance of counsel and was thus invalid. We affirm.

Appellant Steven Williams was indicted on charges of murder generally, robbery and criminal conspiracy. Upon certification by the Commonwealth that the charge of murder rose no higher than murder of the third degree, appellant entered a plea of guilty. Following an on-the-record guilty plea colloquy, appellant received concurrent sentences of five to twenty years' imprisonment on the charges of murder of the third degree and robbery, and a sentence of five to ten years' imprisonment on the charge of criminal conspiracy, also to be served concurrently. At no time did trial counsel file either a petition to withdraw the guilty plea or a direct appeal. Subsequently, appellant filed a prose PCHA petition. Court-appointed counsel then amended the petition and, after an adverse ruling by the PCHA court, filed this appeal.

[ 496 Pa. Page 488]

Notwithstanding the Commonwealth's contrary assertion, there is no question that appellant's claim of ineffectiveness of guilty plea counsel was properly before the PCHA court. This ineffectiveness claim, which required an evidentiary hearing for its resolution, was raised at the earliest opportunity when appellant was represented by counsel other than his guilty plea counsel. Because counsel cannot be expected to raise his own ineffectiveness, the ineffectiveness claim was not waived by the failure of guilty plea counsel to file a motion to withdraw the plea or to file a direct appeal. Commonwealth v. Miller, 495 Pa. 177, 433 A.2d 1 (1981); Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). See also Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Appellant's claim that his guilty plea was unlawfully induced is founded on the theory that guilty plea counsel failed to advise him fully of the possibilities for success on appellate review if he should be found guilty at trial. Appellant concedes that counsel properly advised him that a pre-trial ruling which had held his confession admissible would possibly be reversed on appeal, but argues that counsel improperly failed to advise him that derivative testimony of an accomplice would also possibly be held inadmissible on appeal as tainted by the invalid confession.*fn*

It is well settled that, where a guilty plea has been entered,

"all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Thus allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. See Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976)."

[ 496 Pa. Page 489]

The motion was based upon this Court's decision in Commonwealth v. McCutcheon, 463 Pa. 90, 343 A.2d 669 (1975). McCutcheon held inadmissible the confession of a juvenile made without the benefit of guidance by an adult interested in his welfare. Nevertheless, the suppression court denied relief. At the guilty plea colloquy, appellant's counsel reminded appellant of the adverse suppression ruling and the possibility of reversal on appeal:

"Q. You remember, Mr. Williams, that I told you that the judge that heard your motion to suppress the confession in this case denied the motion.

Further, I told you if you were to go to trial and that confession were to be used against you, it was my professional opinion there would be a possibility that the Supreme Court would rule the confession was not properly obtained from you. Do you remember that?

A. Yes, sir.

Q. Notwithstanding what I've told you just now, you still wish to plead guilty and waive the right to have the Supreme Court test the admissibility of that confession?

A. Yes."

At the evidentiary hearing before the PCHA court, guilty plea counsel testified:

"I told him in terms of his appellate rights that if he pled guilty that any questions of law concerning the admissibility of his confession would be waived, if that's what you're referring to.

I don't remember the specifics that I told him about. My primary concern was that he be aware of the fact that I thought he had a reasonable chance to win the McCutcheon issue on appeal and I think that's reflected in the colloquy in the guilty plea."

At the guilty plea colloquy, in support of the Commonwealth's certification of murder of the third degree, the Commonwealth attorney informed the court that appellant's

[ 496 Pa. Page 491]

    statements to police had been responsible for the arrests of four others who had participated in the robbery and resulting homicide, and that appellant had participated only as a watchman for the others. At the sentencing hearing, the court again was reminded of these mitigating circumstances. Notwithstanding a prior juvenile record, appellant received less than the maximum sentences permitted for murder of the third degree and robbery, as well as a court direction that he receive group psychotherapy while incarcerated.

From the evidence of record the PCHA court reasonably concluded that appellant's decision to plead guilty was based upon his awareness of his guilt and the opportunity for leniency inherent in the Commonwealth's certification of murder of the third degree. In choosing to disbelieve appellant's testimony at the evidentiary hearing, the PCHA court acted within its province as factfinder. The record supports the PCHA court's finding that appellant's decision to plead guilty despite his knowledge of a possible violation of Commonwealth v. McCutcheon would not have been altered if he had also been informed of the possibility that, on appeal, the testimony of witnesses obtained as a consequence of appellant's confession might have been held inadmissible. See Commonwealth v. Chumley, 482 Pa. 626, 648, 394 A.2d 497, 508 (1978). Accordingly, the order of the PCHA court is affirmed.

Order affirmed.

NIX, Justice, concurring.

This record supports the P.C.H.A. court's determination that appellant's guilty plea had been motivated by the Commonwealth's willingness to certify that the degree of murder was no higher than murder of the third degree in the event of an entry of the plea of guilt. This finding justified the order denying relief and that order is properly affirmed by this Court.

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