*1 366 apparent
сomes appeal,... on an proper course Is usually to vacate the sentences remand for resentenc- ing on the valid counts without consideration the in- ” valid one.’ Id. at 886, quoting 296 at A.2d McGee States, United (2d 462 1972) F.2d Cir. C.J.). (Friendly, present In the case, has a record, which includes a number of convictions for steal- ing a driving car or for owner, without the consent of the it is colloquy clear from sentеncing hearing only that if remand, we were to would the same sen- tence be imposed, appropri- but the sentence would be an ate one. these a remand would be a circumstances, procedural mere exercise. judgment receiving goods of sentence for stolen judgment
is vacated driving and the of sentence for motor vehicle without the consent of the owner is affirmed. Voort, J., der
Van concurs the result.
Watkins, P.J., dissents. Carey, Appellant.
Commonwealth v. *3 Argued September 9, Watkins, J., Before 1974. P. Price, Voort, and Cercone, der Jacobs, Hoffman, Van JJ. Spaeth, Lotstein, him and Lotstein, with Seidman
Barnett S. appellant. for Attorney, District with Sendrow,
Mark Assistant Goldblatt, Assistant Larry Feldman H. D. and Steven Attorneys, Gafni, Deputy District Abraham J. District Attorney, Sprague, Richard A. First Assistant District Attorney, Fitzpatrick, Attorney, and F. Emmett District for Commonwealth, appellee.
Opinion J., 24, 1975: June Spaеth, Appellant voluntarily contends that he waive did trial, and that he is therefore entitled to a new trial.
Appellant charged and a co-defendant with bur- were glary unlawfully resisting with intent to commit a felony, arrest, battery. and assault and The assistant district agreed attorney appellant’s with he counsel that would probation appellant plead guilty, recommend if would and appellant accepted plea on advice bar- counsel this gain. However, September appellant when on appeared' Judge bargain for trial before this DiBona, rejected (the rejection was record is at whether odds judge attorney), or the assistant district Judge (now case was listed for before Mr. Jus- tice) 1, 1969, pre-trial On Nix. October conference was Judge Nix, held between attorney, thе assistant district appellant’s counsel, and for the co-defendant. During conference, judge was told about previously arranged guilty plea. failure of the There was ap- also some facts case, discussion pellant’s prior (that time”). record he had “done Follow- ing the conference, counsel advised jury trial, would, if he waived a if convicted, (The receive a sentencе of more no than to 23 months. *4 regarding fully facts this advice will be more discussed below.) colloquy An on-the-record ensued between coun- sel appellant, appellant jury and which after waived a guilty unlawfully resisting trial. He was found of guilty burglary arrest assault battery, and of and but felony. with intent to commit a district assistant attorney a recommended sentence of 6 to 23 months.
370 Judge and
However, the recommendatiоn Nix refused appellant years. Appellant did not to 10 sentenced to 5 petition the Post appeal file a under this sentence but did (1965) Hearing Act, 25,1966, P.L. Act of Conviction Jan. 1580, hearing held (1974-75). A was and 19 P.S. §1180-1 nunc, given post-trial motions was leave file pro denied, and filed tunc. These motions were and appeal followed.
Although
in criminal cases is
guaranteed
to the United
both
Amendment
Sixth
Article
9
States
Constitutiоn
Section
I,
may
Pennsylvania
it
nevertheless be volun
Constitution,
tarily
Kirkland,
48,
413 Pa.
waived.
v.
Commonwealth
53,
338,
However,
order for the
(1963).
A.2d
in
195
340
it
relin
voluntary,
waiver to
must be “an intentional
quishment
right.”
Zerbst,
304
of known
Johnson
U.S.
v.
58,
458,
(1938);
v.
439
Garrett,
464
Pa.
(1970).
met, a
Thus
observed
comprises
understanding
facts:
and will.
waiver”
two
prоved,
can
both of
are
there
be no
Unless
these facts
Understanding
finding
voluntary
alone is not
waiver.
doing
may
enough, for one
he
do
understand what
but
only
response
Neither, however,
is will
to a threat.
agree
enough.
willingly
right,
waive a
alone
One can
response
any
acting freely
the sense of
and not in
threat,
if he
nature of the
but
does not understand the
waiving it,
consequences
waiving, and
“voluntary
cаnnot be a
waiver.”
his waiver
Eisen
Picard,
(1st
F.2d
denied 406
Cir.
cert.
1971),
freely
(1972) (defendant
confessed; confession
U.S. 950
giving
it defend
nevertheless excluded because
time of
mentally
explains
ill).
ant
as
This
such cases
those
requiring that a
told
defendant be
that a
consists of
*5
persons,
twelve
whose verdict must be
unanimous and
may
whose
participate;
selection he
he does not
otherwise
“jury”
understand
a
Williams,
whаt
Commonwealth v.
is.
In present a case such as the case, which involves effect on a advice, impor- defendant of his it counsel’s is keep understanding tant to the two facts of and will dis- tinct. given This so because one kind of advice must be before a right defendant can understand the of the nature in question, willingly give and another he kind before can up right. gen- In the first be instance, advice will e.g., a exрlaining eral: jury statement what a In the is. instance, second it particular, will be and will involve prediction counsel’s respect in the ease at hand with such guilty matters as the likelihood verdict and the probable sentence.
Here, does not contend that did him of, advise or that for some other reason he did not right jury Rather, understand the nature of, his to a trial. waiving contention is that instead of will- ingly, only he it wаived because his counsel assured him if he did it, waive his sentence would more no than 6 to 23 months. considering contention, it must first be
acknowledged opinion that the of the lower court does not respond to it. Thus the court states: promises
“We find as
fact that
no
been
had
made
attorney
the district
or the court to
or his
defendant
any
counsel that
particular
defendant would receive
We,
sеntence in return for a waiver of a
trial.
therefore,
knowing-
hold that defendant’s waiver was
ly, intelligently
voluntarily
entered and that such
a waiver
awas
valid one.”
appellant does not
he
However,
claim that
waived
any promise
trial because of
made
attorney
court;
the district
or the
claims he
it
did
promise
because
of a
himto
his counsel. In these
examination
our own
we have made
circumstances
supports
claim.
whether
determine
record to
advice
counsel’s
point
is whether
to consider
The first
to waive
advice
respect
If counsel’s
mistaken.
some
assess
well-considered
the result of a
reasonable
*6
necessary information
case,
if
ment
all
v.
defendant,
to the
Commonwealth
is communicated
not be disturbed. Common
Wright,
a waiver will
supra,
(1971). How
351,
A.2d 92
Ward, 442 Pa.
275
wealth v.
inadequate
erroneous
or
on
ever, if the advice is based
may
aside. Commonwealth
information,
be set
the waiver
Superior
153,
Here, counsel on his hearing was based tion that his advice the sen- impression pre-trial conference from fact months. more than 6 to 23 The tence would be no only by impression shown not erroneous is that this testimony that by Judge sentence, Nix’s the actual but promise regarding made. the sentence was no on an erroneous based his advice fact that counsel
The pre-trial impression conference of what was said at appel- setting however, aside sufficient, to warrant is not question lant’s waiver of his trial. appellant’s will- whether error affected remains counsel’s ingness right. tо waive disappointed defend it is rather common for
Since waive a constitutional ant claim that he was induced to promise by counsel, Com because of some cf. A.2d 526 Alvarado, 442 Pa. 276 516, monwealth v. ordinarily will no relief be (1971), it has been held that granted “corroborated is unless the defendant’s accepted truthful.” other which as some source 152, A.2d Finney, 155, Pa. 249 433 Commonwealth v. any in (1969). Thus, if denies 286, defense counsel 288 pro corroborating ducement, evidence and if no other upheld. v. But- duced, the be Commonwealth waiver will
373
ler,
374,
(1972)
446 Pa.
;
A.2d 800
288
Guthier,
353,
(1969);
435 Pa.
challenged
guilty plea
as
his counsel’s
induced
promise
erroneous
the sentence would be 2 to 5
years;
proved
years.
in fact the sentence
5 to 25
any
appeared
No direct evidence of
inducement
on the
However,
colloquy
day
trial,
in a
one
after
record.
positively
counsel “stated
that he
to the
communicated
year
defendant the likelihood of a
one-half to
two and
five
sentence. He further
stated that such a communication
among
from a
resulted
conversation
coun-
[defense
,
Attorney
Judge.”
the Assistant District
and the trial
sel]
Finney, supra
Commonwealth v.
support of a new trial than were the in faсts Common- supra. Appellant Finney, wealth the v. testified at PCHA hearing jury that he trial because waived his to a his counsel that receive six to “convinced me I would Kirkland, Kirkland, supra.
1. And v. see Commonwealth judge painstakingly the defendant to deter- trial catechized the rights waiving, personally mine knew she was whether she what including trial, jury the aware of the effect to a was attorney’s possible guilty plea. advice as to a of her Her trial nor As no to be neither coercive definite. sentence found by defendant, promise, upon the the had led to waiver relied Finney the plea, and Kirkland involve were held valid. Both both validity plea. However,., guilty for voluntariness a the standard jury trial. guilty plea that for waiver of the same as the of a Garrett, supra.
twenty-three my . . months. . He shouted down throat.” Contrаdicting colloquy this statement is the on-the-record that was conducted before trial to voluntari- determine During the to colloquy, ness. answered “No” any the promises you?,” questions, “Have been to you being and “Are to of a forced execute this waiver jury testifying hearing, appel- trial?” In PCHA regard appellant’s lant’s counsel indicated that he did not questions untruthful, answers to those as as inasmuch apрellant may referring questions have understood as promises by judge to or trial assistant district attor- by ney, own may, Be that in counsel. the face as colloquy, testimony had waived promise trial because aof would However, appellant’s insufficient to invalidate the waiver. testimony appel- was corroborated counsel, fact, and, powerfully lant’s more so than Finney, supra, Commonwеalth v. for counsel testified that he had “shoved down defendant’s throat, [the waiver] say very frankly court, I to this I led him I led believe, to primrose get path, going him down that he wasn’t more than six months.”
In addition to this there other corroboration of appellant’s testimony. Appellant testified that his case had been non-jury sent for trial room, and that he go had at first told his counsel that he refused to to trial beсause he say wanted a trial. He went on finally accepted he had his counsel’s to waive a advice go jury, and day, because counsel “continu- ously” going told that 6 “was months all I was explained to receive.” He that counsel told him this after pre-trial conference, and that “I was led to believe *8 going Judge’s chambers, out, into he came did and he pre- tell me this is what I would receive.” The fact the assignment room, and the conference, non-jury by testimony were corroborated the both of attorney counsel and of the assistant district who had appeared for the at the trial. It is not necessary propriety to pre-trial consider the con- ference; pertinence present the to the of it discussion propriety its but occurred, that it for occurrence appellant’s testimony corroborates that he was induced to change original plan to ask for a trial because appeared rely in it circumstance to him could on counsel’s assurances.
Finally, necessary background refer to the against which a for waived testi- trial, mony respect background with to that corroborated not only appellant’s testimony but also will his counsel’s. It listing Judge be recalled DiBona, that at the first before plea bargain probation for a had recommendation agreed upon. Appellant been and his counsel their testimony rejection bargain both attributed the of this presence large police in the courtroom of a number of officers. This was corroborated assistant attorney’s testimony, district as follows: which wаs “Q. explain Cary You hear Mr. some of the events up trial, particularly which led to this in reference to what Judge occurred before DiBona. you you please
Will tell what what us know about Judge occurred before DiBona? Judge
“A. The occurrence before DiBona was brought my [appellant’s attention Leidner Mr. Fitzpatrick represented the who Mr. counsel] codefendant. Judge
I beliеve that the this matter before trial of I, oppor- least, Nix at some was in afternoon. had tunity get Attorney’s my office, back to District time, office, with and check the District Attor- ney Judge who handled the before had matter DiBona approximately one month before. Attorney Harvey Sternberg.
That District Harvey Steinberg when confirmed fact that Mr. Cary Judge codefendant, Boganis, and the were beforе fact, negotiated plea that, guilty had been DiBona *9 Harvey Steinberg the Dis- from and that worked out proba- going Attorney’s to recommend officewas trict tion. re-
Harvey Steinberg me that on then informed turning tremendous courtroom, was a to the there case, police in this amount of involved. There were, most probably thirty police the arrest and who of them in the were courtroom. Judge
It оn communi- was before Then DiBona. cating negotiated plea police, outcome of the n they Steinberg very dissatisfied, did become and Mr. keep back, speak, order to them his and in off so to get very trying order to out of what now seems to be a situation, had the case continued. And think the file I marked, continued, was 'Case Commonwealth witness appear.’ failed to prosecuting
I witness, believe the the doctor and property his wife who were the owners of the in- volved, were down the shore. And that was the reason that the case was In program, continued. the old case in room 243.” surprising
Given this background, it is not that when the Judge case was Nix, wary called before was waiving any only rights, his and did so in his after, words, counsel’s the waiver was “shoved down [his] throat.”
The order of reversed, the court below is and a new granted.2 trial is
Cercone, J., dissents. Appellant argued
2. pre- has also the disclosure at the prior negotiated trial guilty plea conference of the and of the fact that he had a process criminal record violated his due Pennsylvania Constitutions; law under the United States and process due of law was also violated because judge appellant’s prior relied on misinformation toas record in determining and, finally, ..sentence; the evidence in- support guilty. sufficient a verdict of We do not reach these issues.
Dissenting Opinion Voort, Van der J.: vigorously I must dissent. my majority opinion, has reversed a conviction procedurally
in a inappropriate Further, manner. even procedural if our rules disposition, would allow such a I don’t believe substantively supported such action could instant cаse.
First, procedural our rules make clear that the issue *10 upon by majority relied improperly the is before this appeal. Court on appellant The record shows that the argument jury the appeal raised of invalid waiver an pursuant to the Hearing Post Conviction Act, in which appeal sought he to jury both have his waiver of a trial right declared post-trial invalid and the file to motions pro nunc tunc. court, opinion
After the hearings, lower in аn filed January appellant’s 1972, invalidity dismissed of claim right of jury granted his of to waiver the trial the but appellant right post-trial pro the to file motions nunc Although appellant appealed part the the tunc. that of lower him, Court, court’s action unfavorable to to our he sought appeal filing that abandoned and a remand for the post-trial motions, granted. of which remand was This appeal post-trial from the of arises denial those motions. majority allegedly upon the of While our Court relies an jury reversal, invalid waiver of trial for issue was that properly timely appeal. Further, never and raised on majority hear- relies on adduced at the PCHA ing completely inap- Procedurally, for its decision. propriate for this to review 1972 Order Court long ago appeal rights court on which were PCHA appellant’s waived and It is that abondoned. clear remedies, pursue abandon tactical decision to other appeal post-conviction relief to the denial of (relating jury trial) precludes our considera- waiver of appeal. tion of such denials in the instant Brittingham, 442 A.2d Pa. 83 pre- procedurally appellant that I believe While waiver of invalid claim from consideration of cluded majority’s vote join jury trial, of I would appropriately argument were if this for reversal even court, at the PCHA appeal. lower in this The before us argument the basis on hearing, dismissed of discre- credibility I no abuse see determination hearing judge. regard by tion in colloquy with trial trial an extensive record shows concerning waiver counsel, the appellant, dеfense oath appellant under jury trial, testified wherein him to promises made to absolutely had no been further denied he He his waiver of trial. induce being trial. He a waiver of forced to execute judge that clearly the trial understood the assertions twenty year if con- sentence he could receive a ten (as he now perjured time If himself at victed. he claims) no to correсt what defense action counsel Moreover, nor his said. neither understanding regarding any promises referred or original sentencing at a later sentence at either the or *11 hearing for of sentence. reconsideration hearing, appellant trial
At the
testified his
PCHA
the
being
judge
anything
about the
did
mention
by
promised
sentencing
involved in the
recommendation
regard
Attorney.1
testimony
the
this
District
His
in
testimоny
counsel;
of
from
of his trial
the
differed
judge (now
the
Nix
trial
Robert
Honorable Justice
C.
Supreme
of our
from
coun-
Court) also differed
defense
appel-
concerning understandings
sel’s
as
sentence.
hearing
lant also
coun-
testified at
PCHA
guarantee.
sel
He
This
“didn’t
recommendation.”
impact
far
testi-
falls
short
the coercive
trial counsel
of
procure
he exerted on
fied
a waiver of
trial. On the basis of this extensive record I believe the
promise
attorney for the
1.
was carried out
This
after
conviction.
justified
finding
PCHA court
in
of
defendant, and even
of
counsel,
his trial
uncon-
vincing.2
credibility
hearing
Such
determinations
court, absent a
discretion,
clear
abuse
should not be
the basis
appellate
for reversal
an
court. Common-
wealth
Riggins,
I find the other appellant totally сlaims of the without merit and would therefore affirm.
Watkins, joins J., dissenting P. opinion. credibility only upon turn not 2.Determinations the assess- witness, part ment of truthfulness on the but also on the responsiveness questions recollection, general witness’ de- concerning credibility meanor. Comments defense counsel’s should implied not be to indicate doubt as to his It is truthfulness. inter- esting witnesses, including to note that all of the Justice Nix had differing slightly during preceding recollections the facts expected long the trial. Such differences must be view of period hearing. time between the trial and the PCHA Appellant.
Commonwealth v. Coleman,