No. 717 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Montgomery County at Nos. 4495, 4607 December 1974, etc.
Abraham A. Hobson, III, Norristown, for appellant.
Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
Rowley, Wieand and Popovich, JJ.
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This is an appeal from the denial of appellant's, William Carter's, Post-Conviction Hearing Act (PCHA) Petition (19 P.S. § 1180-1 et seq.) by the Court of Common Pleas of Montgomery County. We affirm.
By Order of the Supreme Court of Pennsylvania dated September 12, 1977, the Superior Court's per curiam affirmance of the lower court's dismissal of appellant's 1975 PCHA petition without a hearing was reversed. The record was remanded to the lower court to determine, after an evidentiary hearing, the truthfulness of appellant's allegation that his guilty pleas were illegally induced.
Before examining what transpired at the PCHA hearing, it is necessary, in order to place this case in perspective, to set forth the allegations of the appellant as they appear in his 1975 pro se PCHA petition. In that portion of the PCHA petition which requests "the facts in support of the alleged error(s) upon which th[e] petition is based . . ." is typed the following:
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(1) The Attorney for the Commonwealth threatened to file additional criminal charges against the petitioner if he did not honor the plea bargain:
(2) The bargain consisted of a prison term of Three (3) to Eight (8) years but the petitioner was sentenced to a prison term of Five (5) to Ten (10) years:
Petitioner was also sentenced to pay restitution which was not a part of the bargain:
(3) The Attorney for the Commonwealth also made a part of the bargain that the two remaining charges of "simple Assult" [sic] would be Nol Pros: But the Petitioner was given an [sic] consecutitive [sic] sentences to follow the one he is presently serving:
(4) Prior Convictions was [sic] brought up befoer [sic] the plea was accepted:
(Appellant's 1975 PCHA petition at 3)
In a document attached to the PCHA petition, captioned "Memorandum of Law," appellant repeated his allegation that, "The plea of guilty arose out of a THREAT, made by the Prosecutor, who said "That if I didn't plead guilty that additional charges would be placed on me . . . .[']" In response, the Commonwealth filed an "Answer to Post Conviction Hearing Act Petition," wherein it set forth, inter alia, that:
(a) A plea of guilty unlawfully induced (promises and threats made to induce the plea) -- it is denied that the guilty plea was unlawfully induced, and it is averred, to the contrary, that the plea was voluntary, and that there were no improper threats or promises.
(l) It is denied that the Commonwealth threatened to file additional criminal charges if the petitioner did not honor his plea bargain, but to the contrary the notes of testimony of the guilty plea clearly set forth that, in connection with the guilty plea, there were assurances given by the Assistant District Attorney that nothing
[ 318 Pa. Super. Page 256]
would be pursued with respect to possible charges by the Ambler Police Department because of the decision to enter the guilty plea (N.T. 7).
With the preceding as a backdrop, we can now examine what occurred at the December 9, 1977 PCHA hearing, which was restricted to the resolution of appellant's claim that he was "threatened" by the attorney for the Commonwealth that if he did not plead guilty "additional criminal charges [would be filed] against [him.]" (RR. 5)
The first witness to take the stand was the appellant, who recounted how, on the day set for his trial for the July 31, 1974 robbery of a fast-food convenience ("Wawa") store, he and his defense attorney (Mr. Narducci) had been discussing whether to accept a plea bargain offered by the assistant district attorney (Mr. Furber). Appellant recalled, in response to his own counsel's (Mr. Hobson's) inquiry as to what additional charges were threatened, that:
A Well, when Mr. Furber and Mr. Narducci first --
A Yes. We were all at the defense table. And they said that --
Q Who is they when you say they?
A Mr. Furber and Mr. Narducci, when they were talking to me about the plea bargain. At first I wasn't going to accept it. Right? That's when Mr. Furber told me about the sporting goods store in Ambler. And he said that if I didn't take the plea bargain to five to ten for the Wawa store, that they were going to take me down and arrest me for the robbery of the sporting goods store.
Q . . . Mr. Carter, the substance of your allegation is that you pled guilty on the threat of the Commonwealth that they would charge you with the additional [Ambler,
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Pa.] robbery[, which occurred on July 26, 1974,] if you did not accept the plea bargain?
On cross-examination, appellant was asked a series of questions regarding the April 29, 1975 guilty plea colloquy conducted before Judge Honeyman. He recalled that at that time he indicated no one threatened or forced him to enter his plea and he understood the nature of the agreement. He also admitted that during the plea bargain discussion the prosecutor talked to him and Mr. Narducci. His recollection was that after telling the prosecutor that the offer of "five to ten years was too much," (RR. 12), according to the appellant the prosecutor "later stated that he would try to get [appellant] back on the reconsideration of three to eight years, try to get [appellant] three to eight years." Id. Appellant indicated this conversation occurred before the entry of the guilty plea at defense counsel's table.
However, when counsel for the Commonwealth asked appellant why he did not object to the prosecutor's recommendation at the plea to the accused receiving a sentence of five to ten years and the non-pros of the two simple assaults, the following exchange ensued:
A Well, really, I didn't know any better. I was afraid because --
THE COURT: Afraid because of what?
A I was afraid if I had spoke up [sic] that the plea bargain would not have been accepted and the additional charges would have been filed ...