No. 41 W.D. Appeal Dkt., 1982, Appeal from judgment of sentence entered July 15, 1981 of the Court of Common Pleas, Criminal Division of Indiana County at No. 35 Crim. 1980
John H. Armstrong (Court-appointed), Indiana, for appellant.
Gregory A. Olson, Dist. Atty., Indiana, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.
It is undisputed that on May 19, 1980, the Appellant John Charles Lesko pled guilty to murder in the second degree for the killing of William C. Nicholls. This plea was entered into on the day the matter was set for a jury trial, after a brief discussion between the attorney for the Appellant and the Indiana County District Attorney. It appears from the record that in return for the Appellant's plea of guilty to a charge of murder in the second degree, the Commonwealth dismissed the remaining charges of murder, complicity to commit murder, robbery and theft. Furthermore, the Commonwealth would not pursue sentencing of the Appellant until at least June 2, 1981 or later. Thereafter, on or about December 1, 1980, the Appellant filed a motion to withdraw his guilty plea.
In support of this motion, the Appellant alleged that given time for reflection, he wished to exercise his constitutional right of a trial by jury. This motion was subsequently amended on or about April 13, 1981 to allege that the Appellant was motivated to plead guilty "as a result of his illegal arrest and subsequent confession" (R. 26). Furthermore, he indicated that an element of the plea arrangement was that his plea in this case could not be used in his Westmoreland County trial.*fn1 Since the District Attorney of Indiana County testified in the trial in Westmoreland County notwithstanding the Appellant's understanding of the plea agreement, the Appellant wished to withdraw his guilty plea. After taking testimony, reviewing briefs and the record, the learned trial judge dismissed the motion on or about June 5, 1981. Thereafter, the Appellant was sentenced to life imprisonment on the second degree murder charge. The Appellant filed an appeal to the Superior Court, which subsequently transferred the matter sua sponte to this Court. On appeal, the Appellant raised for the first time the issue of the ineffectiveness of trial counsel. Even though no hearing has been conducted regarding this issue, we have assumed jurisdiction of this issue for the sake of judicial economy. Furthermore, remanding for an evidentiary hearing would not assist us in the disposition of this appeal.
In the lower court opinion, the trial judge found that "the evidence established: that the defendant entered his plea of guilty to second degree murder upon agreement of the Commonwealth to delay sentencing as a deliberate choice of trial strategy in an effort to prevent evidence of his criminal acts in Indiana County from being considered as an aggravating circumstance during his first degree murder trial for killing a Westmoreland County police officer." (R. 51). The Appellant agrees with this finding and now argues that his trial counsel was ineffective for persuading him to plead guilty in that trial counsel's conception of the use of
this plea in the Westmoreland County case was in error.*fn2 Because it appears that the action of the Appellant's trial counsel was a calculated attempt to avoid the use of any Indiana County conviction in the Westmoreland County case as an aggravating circumstance, trial counsel cannot be deemed to be ineffective.
In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), Mr. Justice Roberts, now Chief Justice, cogently discussed the issue of ineffectiveness of trial counsel. Initially, trial counsel is presumed to be competent, and his alleged ineffective actions must be evaluated to determine whether the strategy chosen is founded upon a reasonable basis designed to further his ...