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filed: July 16, 1982.


No. 1236 PITTSBURGH, 1980, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC7300542, 7300543, and 7300544B.


S. James Buches, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Hester and Watkins, JJ. Spaeth, J., files a dissenting opinion.

Author: Hester

[ 302 Pa. Super. Page 21]

On December 2, 1972, the appellant, James Michael Thompson, and a companion entered the residence of Milford Thompson in the City of Pittsburgh with the intent of finding the resident-victim and stealing his social security money. Upon discovering that the victim had no cash, the appellant and his companion proceeded to beat him unmercifully until death occurred. Both men then fled the scene with four cans of beer taken from the refrigerator.

On July 23, 1973, the appellant entered a guilty plea before Judges Loran Lewis and Benjamin Lenchner in the Court of Common Pleas of Allegheny County. The plea was accepted and convictions for murder in the first degree and attempted robbery were entered. The appellant was sentenced to imprisonment for life on the murder conviction and to a concurrent term of five to ten years on the attempted robbery conviction. No appeal was taken.

The appellant did file, however, a petition under the Post Conviction Hearing Act on June 20, 1978 alleging that he was denied his right to appeal. That petition was denied on December 5, 1978 and no appeal was taken once again. A second petition for relief under the Post Conviction Hearing Act was filed on July 1, 1980. The appellant was granted his right to appeal nunc pro tunc the Order of Court dated December 5, 1978, denying relief at the first post conviction hearing. This appeal followed.

[ 302 Pa. Super. Page 22]

The appellant argues that both the trial court and counsel failed to assure that the guilty plea was entered knowingly, intelligently and voluntarily as evidenced by the failure to inform the appellant of the possible range of sentences, of his right to participate in jury selection, of his presumption of innocence and of the nature and elements of the offenses charged. We find no merit to this argument and the accompanying allegations.

We agree that the guilty plea colloquy merely made a reference to the charges of robbery and murder. No attempt was made to define these offenses and inform the appellant of their nature and legal elements.

We are well aware of the holdings set forth in United States ex rel. McDonald v. Commonwealth of Pennsylvania, 343 F.2d 447 (1967), Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) and Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976). Read conjunctively, these decisions indisputably required, at the time the appellant entered his plea, the conducting of a guilty plea colloquy that assured that the accused was fully cognizant of the nature and elements of the offenses charged. The law of these three decisions has no doubt generated concise, yet complete colloquies that safeguard an accused's constitutional rights. We believe, however, that these three decisions are, in certain guilty plea proceedings, unnecessarily restrictive.

Certain colloquies, not satisfying the standards of Pennsylvania, Ingram, and Minor, supra, provide alternative methods of establishing the factual basis of the charges, and; consequently, assure a knowing, intelligent and voluntary plea. It is more prudent to hold that colloquies, as here, conducted without reference to the elements of the offense do not, per se, result in involuntary pleas; rather, at most, they shift the burden to the Commonwealth to prove voluntariness through other methods. See Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971). The guilty plea hearing here demonstrated the appellee's accomplishment of that task.

[ 302 Pa. Super. Page 23]

A factual basis for the plea is universally required. Several courts have concluded that a factual basis existed even without considering whether a thoroughly conducted colloquy on the elements of the offenses was conducted. Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973). These decisions were formulated in spite of the earlier ruling in Pennsylvania, supra, and the retroactivity of Ingram, supra. The state of the law on guilty plea colloquies in this Commonwealth, then, is steadfast on the requirement of "factual basis", but capricious on the methods employed to provide a factual basis.

Rule 319(a) of the Pennsylvania Rules of Criminal Procedure requires only that a plea be entered "voluntarily and understandingly" in order to achieve validity. The accompanying legislative comments suggest a list of questions for colloquies that will likely generate a voluntary and understandable plea. One recommendation on the list is an inquiry into the factual basis of the plea; however, the legislature does not limit the production of a factual basis to an on-the-record inquiry into the accused's understanding of each element of the offenses charged.

The factual basis here was established, and the Commonwealth carried its burden, by proving the commission of murder in the first degree and attempted robbery through a lengthy taped interview conducted by Officers DiShantz and Palomino of the appellant. This taped interview, along with the live testimony of two eye witnesses, was produced in full at the guilty plea hearing.

In the taped interview, the appellant described in detail his unauthorized entry into the victim's home, the attempt to steal cash and the bludgeoning of the victim's body. He admitted to kicking the victim, throwing him to the floor, pouring plaster over his entire body to cover fingerprints and contemplating the use of a saw to sever the victim's head.

[ 302 Pa. Super. Page 24]

Albeit the appellant may have entered the house with the intent only to rob the victim, murder in the first degree was undeniably produced via the felony murder rule. The appellant provided the evidence of guilt himself at the interview. He listened to his own admission a second time at the guilty plea hearing and never objected to the accuracy and authenticity of his description of the unfolding events. Accordingly, the factual basis for the plea of guilt to murder in the first degree and attempted murder was established through a method just as effective and conclusive as a specific court inquiry into the elements of the offense.

Upon review of the trial transcripts, we find a specific inquiry by the court into the appellant's understanding of the Commonwealth's obligation to prove him guilty beyond a reasonable doubt. We also find that Judge Lewis interrupted the testimony of Chief Pathologist, Joshua Perper to inform the appellant of the maximum sentences that the court could impose on the robbery and murder convictions entered pursuant to the guilty pleas. Although we agree that the appellant was not informed of his right to participate in the selection of the jury, he has proposed no case law that requires the court to notify an accused of such a right before a guilty plea can be entered knowingly, intelligently and voluntarily. Case law and the trial record support the finding of a validly entered guilty plea. Having found that the guilty plea hearing as a whole insured the entry of a knowing, intelligent and voluntary plea, there is no substance, then, to the appellant's assertion that his trial counsel was ineffective for failing to assist the court in conducting a complete hearing.

The appellant also argues that he did not intelligently waive his right to appeal following the imposition of sentence due to the fact that his trial counsel's alleged ineffectiveness at the guilty plea hearing was an extraordinary circumstance that precluded any such waiver. In reiteration, the guilty plea was voluntarily entered pursuant to a properly conducted colloquy. Trial counsel could not object to an errorless colloquy; therefore, he acted effectively. An

[ 302 Pa. Super. Page 25]

    unintelligent waiver of appellate rights cannot be attributed here to ineffectiveness of counsel.

Next, appellant argues that his was not an intelligent waiver of appellate rights because the Court merely informed him of his rights to appeal and to court appointed counsel if he was otherwise unable to afford one. The appellant contends that such information was not enough to assure an intelligent waiver because appellant must also be informed of the extent of his appellate rights.

We are constrained to disagree. The appellant misinterprets the law of Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). The Wilson court did not require an on-the-record demonstration of the full import of the right of appeal and right to counsel; it merely suggested that such practice would be appropriate. The Wilson court remanded that case only for a determination of whether the Commonwealth could prove that the appellant was aware of his right to appellate counsel. It had already found that the appellant was aware of his right to appeal. The court concluded:

If the hearing court finds that the Commonwealth is able to demonstrate that appellant knew of his right of appellate counsel, it shall enter an order denying relief. Id., 430 Pa. 6, at 241 A.2d 763.

The appellant misconstrues the holding of Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970), as well. Maloy, supra, held only that an appellant's waiver of appellate rights is intelligently entered where he is aware of his right to appeal and his right to have the appeal generated by a free, court-appointed counsel. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Appellant, himself, admits being informed of these two rights by the trial court.

Order of Court, dated December 5, 1978, is hereby affirmed. Appellant is denied the right to file a petition to withdraw his guilty plea and to file a direct appeal. A

[ 302 Pa. Super. Page 26]

    second hearing on his Petition for Post Conviction Relief of June, 1978 is not granted.

SPAETH, Judge, dissenting:

The majority admits that "the guilty plea colloquy merely made a reference to the charges of robbery and murder. No attempt was made to define these offenses and inform the appellant of their nature and legal elements." At 75. Nevertheless, relying on an "alternative method[ ] of establishing the factual basis of the charges," at 75, the majority affirms appellant's conviction. The majority justifies its decision by characterizing case law to the contrary as "unnecessarily restrictive." Id. I am unable to subscribe to this reasoning.

In the majority's view, "Certain colloquies, not satisfying the standards of Pennsylvania, Ingram, and Minor, supra, provide alternative methods of establishing the factual basis of the charges, and, consequently, assure a knowing, intelligent and voluntary plea." At 75. This statement is a non sequitur, which subordinates logic to a desired result. It does not follow -- as the majority's "consequently" suggests -- that a plea was understandingly and voluntarily tendered merely because there was a factual basis for its entry. Rule 319's mandate that "the plea [must be] understandingly and voluntarily tendered" is designed to insure that the accused understands the constitutional rights he is waiving by entering a plea of guilty. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970) (accused tendering guilty plea "stands as a witness against himself and is shielded by the Fifth Amendment from being compelled to do so . . . [and plea is a] waiver of his right to trial before a jury or a judge."); Commonwealth v. Ammon, 275 Pa. Superior Ct. 324, 331 n. 4, 418 A.2d 744, 747 n. 4 (1980) ("guilty plea involves the surrender of a panoply of constitutional rights"); Commonwealth v. Landi, 280 Pa. Superior Ct. 134, 141, 421 A.2d 442, 445 (1980) (guilty plea is a waiver of "a number of significant constitutional rights").

[ 302 Pa. Super. Page 27]

To be sure, it is important to demonstrate on the record that a factual basis for the plea exists. But that demonstration is only a part of the larger demonstration that the plea was understandingly and voluntarily tendered. It may never serve, as the majority would have it serve, as a replacement for the rest of the demonstration.

In addition to depending on a non sequitur, the majority opinion ignores precedent. As an intermediate appellate court, "we are not free . . . to overrule the decisional law enunciated by the Supreme Court of Pennsylvania," Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa. Superior Ct. 565, 573, 352 A.2d 148, 152 (1975), and declare cases such as Ingram and Minor "unnecessarily restrictive," while choosing a course we consider "more prudent." At 75. Besides, the case on which the majority relies to chart its "more prudent" course, Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971), is not only pre- Ingram, but it supports a proposition contrary to that for which it is cited, for there the court required an "independent, judicial conclusion that the accused understands and admits the specific acts constituting the crime[s] charged." Id., 445 Pa. at 317-18, 285 A.2d at 451 (emphasis in original).

If we were to abide by precedent, instead of charting our own course, we should conclude, I suggest, that the order of the lower court ought to be reversed and the case remanded with instructions to grant appellant leave to withdraw his guilty plea. I offer this conclusion quite aware of the unattractiveness of this case; it is, indeed, just the sort of case that invites one to ignore precedent. But the law is not worth much if we follow it only when it leads where we want to go.


On July 23, 1973, appellant pleaded guilty to murder and robbery, and after a hearing, was sentenced to life imprisonment for murder and five to ten years imprisonment for attempted robbery, the sentences to be served concurrently. N.T. 7/23/73, 72. On June 9, 1978, appellant filed a PCHA petition in which he alleged, inter alia, that his "[g]uilty plea

[ 302 Pa. Super. Page 28]

    was not knowingly and intel[l]igently made" and that his "counsel was totally ineffective" and "had deliberately let [his] appeal rights expire knowing [he] demanded a direct appeal." On December 5, 1978, after a hearing, the lower court dismissed the petition, without an opinion. No timely appeal from this order was filed.

On March 28, 1980, appellant filed, pro se, a "Motion in Application for Leave to Withdraw Guilty Plea" and an "Application for Leave to File and Proceed in forma pauperis and for Appointment of Counsel." On June 30, 1980, he filed a second PCHA petition, in which he made substantially the same allegations as he had in his first PCHA petition, and also alleged that although requested to do so, his counsel had failed to take an appeal from the order of December 5, 1978, by which the lower court had denied his first PCHA petition. A hearing was held at which the Commonwealth stipulated that in fact appellant had been denied his right to appeal, and on the basis of this stipulation the lower court, by order of November 17, 1980, granted appellant leave to file an appeal nunc pro tunc from the order of December 5, 1978. The appeal now before us was then filed.

In response to the appeal, the lower court, on February 25, 1981, filed an opinion explaining why it had entered its order of December 5, 1978. In its opinion, the lower court said:

A petitioner who fails to attack his guilty plea on direct appeal waives his right to make the allegation in a Post Conviction petition. In Commonwealth v. LaSane, [479 Pa. 629] 389 A.2d 48 (1978) and Commonwealth v. Porter, [256 Pa. Super. 163] 389 A.2d 651 (1978), the Supreme and Superior Courts of Pennsylvania held that because the validity of a guilty plea is cognizable on direct appeal, the issue is waived and cannot be raised in Post Conviction proceedings unless the petitioner establishes either the existence of extraordinary circumstances justifying the failure to raise the issue or he rebuts the presumption that his failure to ...

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