*2 EAGEN, O’BRIEN, Before ROBERTS, POMEROY, NIX MANDERINO, JJ.
OPINION OF THE COURT O’BRIEN, Justice. John
Appellant, Joseph Gergel, was tried aby judge and convicted of murder in degree, first criminal attempt-es- cape aggravated assault. Post-verdict motions were denied and was appellant sentenced to life imprisonment for the murder with conviction, concurrent terms of three and one-half to seven for the years other convictions. This appeal followed.1
The facts are as 15,1974, follows. On December arrested connection with a burglary investigation placed the Monroe Jail. A County recent from a escapee New prison, had Jersey used alias of Jason Bhillips. On December appellant asked be allowed to make a call. phone cell, Once out of his he pulled large steel from mop bucket handle his trousers and began beating the two guards him. accompanying guards, One VanAuken, Samuel died of a skull fracture.
Appellant raises issue one on this He claims appeal. he was denied his under the jury provisions of the Sixth the federal constitution because 1311 of the Crimes provided Code imposition of the in a under certain circumstances, but such to either provision applicable nonjury trials Only appealed. the murder conviction has been correct, this to be we do guilty pleas.2 Assuming not agree with appellant’s position. inter alia:
The Crimes Code provides, mitigating circumstances. —If a “(d) Aggravating murder of the first degree accompanied at least one of the following aggravating circumstances and none of the following circumstances, mitigating person con- victed shall be sentenced to death. If a murder of the first degree accompanied by any following is accompanied circumstances or aggravating by at least one of the following mitigating circumstances the person convicted shall sentenced to life imprisonment:
“(1) circumstances: Aggravating fireman, The victim was a officer peace or public
“(i) servant concerned in official detention as defined in section 5121 of this title who (relating escape), killed in the of his duties. performance
“(ii) defendant or paid another paid by per- son or had contracted to or be pay paid by another person or had conspired to or be pay paid another person for the of the killing victim.
“(in) The victim was being held defendant for ransom reward, or or as a shield or hostage.
“(iv) The death of the victim occurred while defend- ant was in the of an engaged hijacking aircraft.
“(v) The victim was a to a or witness murder other felony committed the defendant and was killed for of purpose preventing testimony against defendant in or any grand jury criminal proceeding such involving offenses.
“(vi) The defendant committed a while in the killing perpetration of a felony.
“(vii) In the commission of the offense the defendant knowingly created a risk of grave death to another person in addition to the victim of the offense.
2. promulgated possible Pa.R.Crim.P. 352 was to handle death sen- tences when a of is entered. Rule 353 was likewise promulgated for those instances where trial was waived. Nei- rule, however, ther was in effect at the time of trial. The offense
“(viii) was committed means tor- of ture.
“(ix) The defendant has been convicted another Federal offense, or committed either at State before or the time issue, of the offense at for which a life or death imprisonment imposable or the defend- ant was life undergoing sentence of imprisonment reason the time any of the commission of the offense. “(2) circumstances: Mitigating
“(i) The lack of or age, maturity, youth defend- ant at the of the killing. time
“(ii) The victim was a or consented participant in section 1311(d) defendant’s conduct as set forth this title was a or consented to the participant killing.
“(iii) The defendant was under duress although as to such duress constitute a defense to prosecution duress). under 309 of (relating section this title “(e) Guilty pleas trials. —In cases of non-jury court, of guilty, or trial the court shall impose sentence in accordance with Rules of Criminal Procedure as pro mulgated by Supreme Court of Act Pennsylvania.”3 6, 1972, December P.L. No. amended Decem ber 30,1974, 345, 18 P.L. No. P.S. (Emphasis added.)
Because killed a servant concerned “public detention,” official while no mitigating circumstances were present, could well have been sentenced very *4 death for fact, however, the murder. This is of no moment to appellant.
In
States,
742,
90
1463,
United
397
S.Ct.
25
U.S.
Alford,
25,
L.Ed.2d 747
and North
(1970)
Carolina
400 U.S.
91
160,
S.Ct.
431
fear of
their
were coerced
death.
In
guilty pleas4
164,
31,
400
91
the court stated:
U.S.
S.Ct. at
States,
v. United
“We held in
90
plea
guilty
1463,
advice was that
the plea would be
the
to
defendant’s
”
.
.
.
advantage.
court,
This
Melton,
Commonwealth
465 Pa.
539-40,
L.Ed.2d entitled to no broader reading evident from the Supreme Court’s decision v. U. S. [supra]. Court there declined to order the vacation of a guilty plea shown have been induced fear of the death jury-imposed penalty permitted under the provision of the Federal Act and Kidnapping found unconstitutional in Jackson. The Court stressed that Jackson ‘neither a new fashioned standard for of judging validity nor guilty pleas mandated a new of the test application theretofore fashioned courts and since reiterated that are guilty pleas valid if both “voluntary” “intelli- ’ gent.” at L.Ed.2d at in North Again, Carolina [supra], Court said:
‘That would not have pleaded except [a defendant] for the to limit the opportunity possible does not necessarily demonstrate was of a free product choice, and rational especially where the defendant was represented by competent counsel whose advice was defendant’s advantage.’
“We believe the present case be controlled these decisions. has Appellant failed to demonstrate that his confession was not voluntary intelligent; the mere fact that he that it alleges induced fear of the imposition death penalty by supposedly ‘hanging is, jury’ itself, insufficient to vitiate the plea.” Here, appellant argues that his only waiver of his Sixth to trial by coerced because fear of a possible sentence. Brady and Alford estab- lish, however, that alone insufficient show that a waiver unknowing test to involuntary, standard is in when the waiver a constitutional be used ***5 volved.I. affirmed. Judgment *6 MAN- in which J., a ROBERTS, dissenting opinion files DERINO, J., joins. a
MANDERINO, J., dissenting opinion. files J., took no consideration JONES, part former C. of this case. decision
ROBERTS, Justice, dissenting. than a to be a rather by judge, decision tried Appellant’s scheme was an unconstitutional coerced jury, mandatory to the of a which exposed appellant possibility if, if, he exercised only death trial a scheme constitutes Such right by jury. the assertion of a constitu- upon “an burden impermissible 583, 88 Jackson, 570, tional United States right.” 1217, L.Ed.2d 138 Because 1209, (1968). influence, it result improper decision was in fact the of this as States cannot be held United voluntary required 532, 18 States, 168 U.S. Constitution. Bram v. United of sentence judgment L.Ed. 568 (1897). Accordingly, new trial. appellant be reversed and a granted should I. homicide a result of indicted criminal
Appellant The the December death of VanAuken. Samuel victim was a at the Monroe Jail prison guard County killed who incarcerated allegedly by appellant, The escape on a in an jail burglary charge, attempt. conviction of upon Crimes Code a sentence of death requires that the victim was degree finding murder first performance officer killed in the his duties peace only appellant theory challenge the consti- 5. As advanced sentencing procedure, one has only theory tutionality need of our Mitchell, 464 Pa. 346 A.2d considered. Commonwealth that no circumstances mitigating exist. 18 Pa.C.S.A. 1311(d)(1)(i)(Supp.1977).1 However, § at the time appellant was brought to trial no rules existed which would authorize imposition of sentence of death after guilty or a waiver of the right to trial by jury. See Pa.C.S.A. 1311(e) (Supp.1977). Consequently, could only receive a sentence of death if he exercised his constitutional to a jury. does not that it dispute was with this fact in mind that waived his jury. Ap- pellant contends death penalty sentencing scheme as it existed when he pleaded 31, 1975, on March under which defendant could if only sentenced the defendant elected to be tried aby jury, placed unconstitutional pressure him upon to waive his trial by jury. Jackson, See States v. *7 1209,
S.Ct. 20 L.Ed.2d (1968). 138 Because this unconstitu- tional scheme coerced to waive his jury, he asserts that his waiver was not truly voluntary and must be set aside.
The majority, without
that
contending
the sentencing
scheme as it existed when
was
to
brought
constitutional,
was
nevertheless holds that
waiv-
er of his to a trial
by jury
voluntary.
The
relies
majority
upon cases which
a
hold that
of
plea
guilty is not rendered
when it
involuntary
have been
may
induced in
of
by fear
part
receiving
sentence of death
trial,
after
even if the statute
of
authorizing
death is later held unconstitutional. See North Carolina v.
25,
400
91
160,
U.S.
S.Ct.
27
162 (1970);
L.Ed.2d
Brady
States,
v.
742,
United
397
1463,
U.S.
90
25
S.Ct.
(1970).
L.Ed.2d 747
also
Melton,
See
Commonwealth v.
465
majority
1. The
mitigating
concedes that there were no
circumstanc
recently
es. We
mitigating
have
held that the limited
circumstances
recognized by
the Crimes Code render the death
statute
Moody, - Pa. -,
unconstitutional. Commonwealth v.
382 A.2d
(1977);
White,
343,
442
475
Commonwealth
Pa.
435
feels
Even if
Court
(1976).
221
529, 351 A.2d
Pa.
Alford,2
support
do not
they
and
Brady
to follow
1463,
742,
25
747
L.Ed.2d
Brady
U.S.
90 S.Ct.
397
United
Supreme
considered the
which
Court
(1970)
case in
the
first
1209,
Jackson,
510, 88
U.S.
S.Ct.
effect of
L.Ed.2d 138
The
States
guilty plea.
(1968)
of a
in
to the voluntariness
relation
pleas
guilty
that all
ruled neither
stated that “Jackson
Court
involuntary
possible
encouraged by
are
of a
death sentence
the fear
involuntary
pleas
encouraged
pleas
are invalid whether
nor that such
747,
part of this
1468. The first
at
or not.”
holding
not
the death
are
all
motivated
fear of
—that
however,
part,
involuntary
agree
seems
per
merely
with. The second
se
—I
beg
regarding
of an unconstitutional
question
the effect
to
plea.
in
guilty
result
The
encouragement
Brady
voluntariness of
on the
correct,
that
appears
court had found
in that the district
to be
than
Brady’s plea
other
motivated
considerations
uncon-
Carolina,
sentencing
North
See Parker v.
scheme.
stitutional
(1970)
L.Ed.2d 785
and
v. United
Brennan, J.,
opinions
States, supra (dissenting
concurring
Marshall,
JJ.),
by Douglas
90 S.Ct.
joined
Thus,
sup-
language Brady
to the extent the
in
proposition
ports the
even
unconstitutional inducement
plea,
plead guilty,
involuntary,
in fact results
does not render that
which
Moreover,
appear
it
to be dictum.
the dictum
supported
appear
rationale
the Court
does
Brady.
reasoned:
concerned,
“Insofar as
of
(1)
is
is
the voluntariness
there
defendant,
jurisdiction
from
little
differentiate
range
judge
where the
have
same
power,
pleads guilty
lawyer
who
advises
because his
him that
judge
(2)
very probably
jury;
will
lenient than the
more
defendant,
jurisdiction
judge
in a
where the
alone has
normally
power,
judge
who is
counsel
more
advised
plead
go
with
who
with
who
lenient
defendants
those
trial; (3)
permitted by prosecutor
judge
the defendant who
charged;
plead guilty
offense
in the offense
to
and
understanding
to a lesser
included
(4)
pleads guilty to certain counts with the
the defendant who
charges
dropped. In
of these
other
will be
each
*8
case,
situations,
might
plead
Brady’s
never
as in
the defendant
plea
possibility
certainty
in
or
will result
absent the
imposed
penalty
after a
a
a lesser
trial and a verdict of
guilty plea
than the sentence that could
hold, however,
guilty.
decline to
that
We
Fifth
is
under the
invalid
accept
cer-
whenever motivated
tainty
range
higher penalty
the defendant’s desire to
the
probability
penalty
or
of a
rather
face
lesser
wider
possibilities extending
acquittal
from
to conviction and
charged.”
authorized
law for the crime
751,
(footnote omitted) (emphasis added).
important represented has been when the defendant particularly When, however, a defendant counsel. by competent advised his undoubted and exercises his guilt to admit unwilling no there can be to its proof, the Commonwealth right put of the waiver “voluntary” for holding justification admittedly that waiver was when right scheme. sentencing unconstitutional compelled by patently an insensitive regard reflects The decision of the that the waiver the basic principle for not the result of impermissible must be voluntary, coercion.
II. that scheme There can be little doubt sentenced to death when a defendant could be determining came at the time appellant as it existed was unconstitutional Jackson, the United supra, In United States to trial. the sentencing held unconstitutional Court Supreme States 1201(a) Act, 18 Kidnapping scheme of the Federal U.S.C.A. § not a judge, impose which but permitted jury, held that such of death conviction. The Court upon of the Fifth a scheme chilled the assertion needlessly and the Amend- Sixth plead ment to a trial To the by jury. argument intended to miti- effect was incidental to a scheme merely responded: Court gate the severity punishment, chilling effect is ‘inciden- “The is not whether question intentional; whether that question tal’ rather therefore excessive.” Id. effect is unnecessary that our It is clear 88 S.Ct. at trial, suffered the came to scheme, at the time appellant sen- Indeed, if our anything, infirmity. same constitutional Federal effect than the chilling scheme had a more tencing because, statute, penal- our the death Act under Kidnapping 18 Pa.C.S.A. rather than See mandatory permissive. ty indicates, it is of quote As the above (Supp.1977). constitutional moment the unavoidable effect chilling of the scheme was unintended.
III. Neither the nor the majority Commonwealth contend that appellant’s decision to waive his by jury was not in fact result of the precise effect chilling which renders the sentencing scheme unconstitutional. Nonethe- less, the decision, holds that by the scheme in statutory time, effect at the was voluntary. I cannot view, In agree. my waiver of a constitutional right cannot be truly voluntary when it by induced a patently unconstitutional factor.
The majority relies on North Carolina v. supra, and v. United Brady supra, that holding appel- lant’s waiver of trial by jury was voluntary. Although I whether we question should follow and Alford as a matter of state law in cases involving guilty pleas actually coerced scheme, unconstitutional see note neither supra, the result of compels the majority. Many factors enter into a defendant’s decision whether to enter a of judicial and are guilty, many policies implicated by guilty which are not pleas, involved or affected by the decision whether tried a or judge a jury. These factors and policies appear to have been uppermost in the Court’s mind when and Alford were decided.
In Brady, the Court was clearly concerned decision fear greater possibly sentence after trial would render pleas would involuntary seriously disrupt entire justice criminal system. The Court stated: present well over three-fourths criminal con-
“[A]t victions in this rest on country pleas guilty, great of them many no doubt part motivated least in hope assurance of a lesser might be imposed if there were a guilty verdict after trial to judge or jury. course,
“Of the prevalence of is ex- guilty pleas plainable does not validate those necessarily pleas or the it hold that But we cannot them. which produces system a benefit to to extend for the State is unconstitutional to the benefit a substantial in turn extends who defendant ready that he is his who demonstrates State correction- to enter the his crime and admit willing for success hope mind that affords in a frame al system than might of time period over a shorter in rehabilitation necessary. otherwise be Fed- the States require holding
“A contrary altogether, forbid guilty eral Government defined for each crime invariable single provide in a function statutes, or to place of the manner no knowledge having separate authority In any in each case was obtained. which the conviction prosecutors to forbid necessary it event, would *11 counts, to lesser to selected accept guilty pleas to judges The Fifth charges. reduce offenses, or to included so far.” not reach Amendment does omitted). (footnote at 1471 752-53, 90 at S.Ct. U.S. in- further analysis, without which applied Alford to which pursuant bargain, an explicit plea volved second thus degree, murder of the to entered a plea convic- sentence after of a death foreclosing possibility tion. result in Al- a contrary agrees or not one
Whether it is altogether, forbidding guilty would compel ford3 when apply do not considerations that the same apparent right insists on his defendant who is whether a the question right coerced to waive impermissibly to trial has been the Common- plea, to a guilty jury. Compared by in whether a defendant less interest wealth has considerably the decision importantly, Most jury.4 is tried or by judge difficulty supra, I would have indicated in note 3. As I have Brady, the district reaching since the same result as the Brady’s guilty plea appreciably was not expressly court found that scheme. motivated the unconstitutional concerning waiver of the rules 4. This is reflected our authority may to refuse to Although have by jury. court the trial whether tried a judge or a in no jury way implicates bargaining which, as system, Brady recognized, may be essential to the present justice criminal system. See 397 at 751-52, at S.Ct. 1471.5
Moreover, a defendant who waives the trial, jury but who does plead guilty, does not “demonstrates by his that he ready willing admit his crime.” Id. at 1471. Given the emphasis the Court on the Supreme placed defendant’s admission of guilt, I do not believe can be where a applied defendant does not admit his but guilt, insists on trial before a judge.
The criminal process often requires “the
diffi-
making of
cult
Richardson,
McMann v.
judgments.”
759, 769,
397 U.S.
90 S.Ct.
1448, 25 L.Ed.2d
This does not
mean, however, that
the state can force a
decision on
defendant
means.
improper
The United States Supreme
Court has stated that a free and
waiver of
voluntary
fifth
amendment
“must
rights
not be extracted
sort
by any
threats
violence,
nor obtained by any direct or implied
promises, however
nor
slight,
exertion of any improp-
”
er influence. Bram v.
532, 542-43,
not. See Pa.R.Crim.P. 1101-02. finding 5. The Commonwealth asserts another basis for the state’s compromised by holding are interests waiver *12 was invalid because induced the scheme. The Com argues would, effect, given monwealth that defendants in the trials, that, judge, jury, to two one before a and one before a in second, imposed original death could not be because of the life argument sentence. This has little merit. It overlooks the basic fact scheme, tried, appellant as it existed when patently and, thus, unconstitutional death could legally imposed. Jackson, supra. not have been U. v.S. Once system remedied, longer unconstitutional any has been there is setting basis for aside the waiver of a defendant who elected to be by judge. appellant tried hardly The fact that will receive a trial new can denying relief, be a basis for him once it determined that his by jury unconstitutionally waiver of in fact coerced. the assertion of chill or effect purpose them to exercise those who rights penalizing [chose] Jackson, 390 U.S. . .” United States demonstrates clearly the record at 1216. Since S.Ct. coercing in its effect impermissible the scheme had waiver was jury, appellant’s to waive his influ- improper “the exertion . through obtained I set aside. dissent. ence” and should be MANDERINO, J., joins dissenting opinion. in MANDERINO, Justice, dissenting. Mr. Justice Roberts. dissenting
I in opinion join issue to the unresponsive opinion wholly The majority 1311 the contends that appeal. Appellant in this raised the trial Code, provided at the time of which Criminal not for the provide trials but did jury the death cases of guilty pleas, trials and non-jury death penalty on the Sixth infringed impermissibly effect, contends, then-existing He trial by jury. from route going jury scheme deterred him statutory so, running gauntlet if he because he did such whereas no penalty, have received death could had he trial. existed waived possibility (1970), and North Carolina L.Ed.2d do not obviously 27 L.Ed.2d moti- held that case. Those cases control this was not desire to avoid by a vated of the Fifth Amendment. meaning within the with a Amendment claim that cases did deal Sixth Those choose whether be tried freely was entitled aby jury.