Appeal by allowance from the March 4, 1987 judgment of the Superior Court of Pennsylvania at No. 108 Philadelphia, 1986 which vacated in part and affirmed in part the December 10, 1985 Order denying P.C.H.A. relief by the Honorable Leonard Sugerman of the Court of Common Pleas of Chester County at Nos. 1267-76, 1268-76, 1268-76(a) and 1269-76. 365 Pa. Super. 648, 526 A.2d 817 (1987).
Stuart Suss, Director of Appeals, for appellant.
Joseph S. Nescio, West Chester, for appellee.
John W. Packel, Jules Epstein, Elaine Demasse, Benjamin Lerner, Philadelphia, for amicus-defender Association of Philadelphia.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Papadakos, J., files a concurring and dissenting opinion which is joined by Larsen, J. McDermott, J., files a dissenting opinion joined by Larsen, J.
James Weakland, appellee herein, pled guilty or nolo contendere to various crimes arising from the murder of Cecil Rash and the robbery of the gas station owned by Cecil and Florence Rash in Chester County. Specifically Weakland pled guilty to two counts of robbery and one count of criminal conspiracy, and nolo contendere to one count of kidnapping, four counts of aggravated assault, one count of theft, and a general charge of homicide. Following a degree of guilt hearing, conducted on April 11 and 12, 1977, a three judge panel ruled that he was guilty of first degree murder. On November 29, 1977, following denial of post-trial motions, Weakland was sentenced to life imprisonment on the murder conviction. On April 24, 1978, he was sentenced to fifty-three and one-half to one hundred seven years on the remaining charges, consecutive to the life sentence. Superior Court affirmed the judgments of sentence on appeal, and this Court denied a petition for allowance of appeal. Weakland then filed a P.C.H.A. petition,
which the trial court denied, but on appeal, Superior Court vacated two of the judgments of sentence, ruling that one assault against Mrs. Rash merged with another, and that another assault against a witness, one Mr. Wilson, merged into the crime of kidnapping, 365 Pa. Super. 648, 526 A.2d 817. (table) Both the Commonwealth and Weakland petitioned for allowance of appeal. We denied Weakland's petition, but granted the Commonwealth's petition in order to address the question of whether Superior Court treated the merger questions properly.
The Commonwealth's first claim is that Superior Court was in error in determining that its review of the validity of Weakland's sentences must be circumscribed by an examination of evidence presented at the guilty plea colloquy, but not at the degree of guilt hearing. Superior Court's reasoning was:
We do not feel it is appropriate to consider these facts [those presented at the degree of guilt hearing] as they were not presented as part of the factual basis for the plea.
Slip Op. at 4, n. 2. The question, thus, is whether facts presented at a degree of guilt hearing, but not at a guilty plea colloquy, may serve as the basis for a conviction.
At the time of this trial, Pa.R.C.P. 352 (rescinded April 2, 1978) provided:
(b) When a defendant charged with murder enters a plea of guilty and the attorney for the Commonwealth does not certify that the case does not rise higher than murder of the second degree, the judge before whom the plea is entered shall hold a hearing to determine whether the case may constitute murder of the first degree. If, after the Commonwealth's presentation of its evidence, the judge is of the opinion that the case does not rise higher than murder of the second degree, the judge shall proceed to hear all the evidence, determine the crime and impose sentence.
(c) If, after presentation of the Commonwealth's evidence, the judge is of the opinion that the case may
constitute murder of the first degree, the judge shall secure the assignment of two other judges of like jurisdiction and power to sit with him as a panel to hear the evidence and decide all issues of law and fact. A decision that the offense is murder of the first degree shall be by unanimous vote. If the panel does not find murder of the first degree, the panel shall determine the degree of the crime by majority vote. If the panel determines that the crime is less than murder of the first degree, the judge before whom the plea was entered shall alone determine and impose sentence.
Pursuant to this rule, a degree of guilt hearing was conducted at which evidence of other crimes in addition to murder was admitted. Weakland would have us decide that this other-crimes ...