No. 95 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Lebanon County at No. 214, (A), (B) of 1977.
Jon Stuart Pushinsky, Pittsburgh, for appellant.
Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
McEwen, Johnson and Popovich, JJ. Johnson, J., concurs in the result.
[ 328 Pa. Super. Page 145]
This is an appeal from an order of the court which denied appellant's petition for Post Conviction Hearing Act relief, 42 Pa.C.S.A. § 9541 et seq. We affirm.
Appellant raises the following issues: (1) whether the trial court erred when it failed to explain on the record during appellant's guilty plea colloquy the essential elements of a jury trial; (2) whether the trial court erred when it failed to advise appellant of his right to file a motion to withdraw his guilty plea; and (3) appellant's guilty plea counsel was ineffective for failing to advise appellant of the defective colloquy, for failing to appeal attacking the defective colloquy, and for failing to advise appellant of his right to file a motion to withdraw his guilty plea. We affirm.
On May 25, 1977, appellant was convicted of murder of the second degree, kidnapping, and robbery for the fatal stabbing of Wanda Marie Geho. On May 23, 1977, appellant and defense counsels, Peter Campana and Waring
[ 328 Pa. Super. Page 146]
Fincke, commenced jury selection. This procedure continued for a period of three days, at which time the prosecution presented its chief witness, Frances Hunt, who was appellant's female companion. Hunt testified that she assisted appellant in his escape from Lewisburg Penitentiary on September 30, 1976, the day before the murder. She also stated that appellant had arranged to meet her in order to "drive him into the Williamsport area and let him off." N.T. 5/26/77 at 684. Hunt also was instructed to bring appellant a change of clothes and utensils, including a knife. After the appellant and Hunt met in the woods, Hunt drove appellant to a shopping center at which time appellant departed. The appellant then made arrangements to contact Hunt at a certain time each day.
The next day Hunt was driving and stopped at the same spot "[t]o where [she] had dropped him[, the appellant,] off the day before." N.T. 5/26/77 at 698. The witness noticed that the weeds were trampled and then noticed that the victim was seriously wounded. The witness called the police. The testimony continued. However, a recess was taken, and appellant elected to enter pleas of guilty to murder, kidnapping, and robbery. In exchange for the plea, the prosecution agreed to take no position on whether the plea would be concurrent or consecutive to any sentence appellant was serving, would indicate to the court that appellant's plea of guilty was a plea of guilty to murder of the second degree, robbery, and kidnapping, would agree that appellant should serve his federal sentence in a state penitentiary and would nol pros the other charges pending against appellant.
The plea was accepted, and appellant was sentenced to concurrent terms of imprisonment of not less than ten years nor more than twenty years each on the murder charge, the robbery charge, and the kidnapping charge. The court also ordered these terms to run concurrent with the federal sentence appellant already was serving. No direct appeal was taken.
[ 328 Pa. Super. Page 147]
On July 20, 1981, appellant filed a counseled PCHA petition which was denied after a hearing. This appeal followed.
There is no dispute that the colloquy was defective because it failed to advise appellant that the jurors would be members of the community, failed to advise appellant of his right to participate in the jury selection process, and also failed to advise appellant that a unanimous verdict must be rendered in a jury trial. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973); Commonwealth v. Weiss, 289 Pa. Super. 1, 5, 432 A.2d 1020, 1022 (1981). Despite this defect, we are not persuaded that appellant is entitled to relief.
Appellant raises essentially two issues. He contends that the trial court erred when it gave a defective colloquy and in failing to advise appellant of his right to file a motion to withdraw his guilty plea. Appellant also raises counsel's ineffectiveness as a separate ground for relief in connection with these two issues.
At the outset, we note that an issue is waived if:
"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) Presumption. -- There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a ...