No. 49 E.D. Appeal Dkt. 1983, Appeal from Order of the Superior Court of Pennsylvania, No. 45, Philadelphia 1981, dated November 19, 1982, Affirming the Order of the PCHA Court, which denied appellant relief under the Post Conviction Hearing Act and which Affirmed the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information Nos. 1834 and 1837, September Session, 1975
McDermott, Justice. Nix, C.j., files a concurring opinion. Zappala, J., files a concurring opinion in which Larsen, J., joins.
On September 4, 1975, appellant, Curtis L. Anthony, was arrested on charges of felony-murder, robbery, criminal conspiracy, and possession of an instrument of crime, for his participation in the hold-up of a clothing store, which resulted in the shooting death of the proprietor. The slaying had been witnessed by the victim's partner. Shortly after his arrest, appellant gave written and taped-recorded statements admitting complicity and implicating his confederate.
Prior to trial, appellant negotiated a plea bargain with the prosecutor. In return for a plea to charges of murder and robbery, the Commonwealth certified that the murder rose no higher than third degree and nol prossed all remaining charges. Before accepting appellant's plea, the trial judge engaged in an extensive guilty plea colloquy with appellant,
probing his knowledge and understanding of his rights and his willingness to forego them. After his plea appellant was sentenced to concurrent terms of imprisonment of 10 to 20 years for third degree murder, and 2 1/2 to 5 years for robbery. No petition to withdraw the plea was filed nor direct appeal ever perfected; rather, appellant sought relief under the Post Conviction Hearing Act (hereinafter "PCHA").*fn1 Following a hearing on the petition, appellant's requested relief was denied. The order of the PCHA Court was affirmed on appeal by the Superior Court (Opinion, McEwen, J. joined by Cirillo and Hester, JJ.). Commonwealth v. Anthony, 307 Pa. Super. 312, 453 A.2d 600 (1982). This appeal followed.
Prior to reviewing the merits of appellant's claim we note that the PCHA Court held, and the Commonwealth has here argued, that the failure of appellant to effect a direct appeal constituted a waiver of the issues raised herein. However, appellant's complaints were raised in the context of an ineffective assistance of counsel claim: an "extraordinary circumstance" under 42 Pa.C.S.A. § 9544(b), sufficient to permit review of the alleged errors. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). As a result, the Superior Court elected to address appellant's substantive claims, as do we, in light of the standard that counsel will not be held to have been ineffective for failing to raise a meritless claim. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
Appellant urges that because he was not explicitly informed during his guilty plea colloquy that a jury verdict must be unanimous, it was defective, and consequently, he now is entitled to a withdrawal of his negotiated plea and a trial. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). It is conceded that the colloquy was sufficient in all other aspects.
In evaluating appellant's claim, we find guidance in the most recent interpretation of Williams, supra, by this Court in Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983), in which Mr. Justice Zappala noted:
It must be recognized that Williams did not establish a prophylactic rule requiring a new trial for failure of the record to indicate the defendant's knowledge of each and every element of the jury trial right which he was waiving. The focus in Williams was, and it remains, whether the waiver was knowing and intelligent, not whether certain talismanic questions were asked and answered.
Id., 503 Pa. at 372, 469 A.2d at 600.
Knowledge by the defendant of the nature of the consequences of a plea of guilty may be found from the totality of the circumstances and is not limited to direct instruction by the court. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). As Mr. Justice Flaherty wrote in Shaffer:
The true constitutional imperative is that the defendant receive "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." (Citation omitted.)
Id., 498 Pa. at 350, 446 A.2d at 595. In that case, the elements of the offenses charged were spelled out in the Commonwealth's case, and the defendant elected to plead guilty. We held that no further advices were required.
Furthermore, we cited with approval the reasoning articulated on this issue by the United States Supreme Court in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976):
It may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to ...