Commonwealth v. Dennis
304 A.2d 111
Pa.
1973
Check Treatment

*1 Dissenting Mb. Justice Nix: I agree with. Justice Robebts’ conclusion his dis- senting neither of the opinion appeals before us properly raised the constitutional only issue. add that it long been the rule of this Court will attempt resolve constitutional issues unless specific issue is before the court the resolution of the issue decision absolutely to the necessary Binder v. case. Triangle Publications, Pa. Inc., 275 A. 2d 53 v. Steel (1971); Misitis City Piping, 272 A. 2d 883 Shuman v. (1971); Bernie’s Drug Concessions, Appellant. Dennis, *2 Before Jones, 1972. C. J.,

Submitted November 8, Nix and Mander- O’Brien, Egberts, Pom:eroy, Eagen, INO, JJ.

Samuel Kagle, appellant. Mil- James T. and Banney Bose Mary Cunningham, District Bichard A. Attorneys, ton Assistant Stein, M. District and Arlen Attorney, First Assistant Sprague, for Commonwealth, appel- Attorney, District Specter, lee. by Jones, May 1973: Chief Justice Mr. George Dennis, appellant, May

On to mur entered counsel, by represented at hearing Following degree-of-guilt der generally. to the court certified Attorney the District in the second crime higher rose crime found degree, six term of less than not trial court and sentenced No appeal more than years’ imprisonment. nor twenty filed a 1970, appellant taken. On September 22, Act1 Post Hearing Conviction under petition denied his appellate that he was (1) (PCHA) alleging introduced at the degree- the evidence (2) that rights, to raise the crime was insufficient hearing of-guilt that his voluntary manslaughter, above because it or entered intelligently knowingly and derelic an involuntary was based upon in trial counsel was that his tion counsel, court’s from the lower appeal This competent. *3 a at which following hearing appellant denial relief counsel. was represented appointed denied initial he was Appellant’s allegation founded. Although is well rights his appellate concerning appellate information appellant given he not prejudiced by any inadequate,2 rights It appeal. of the to is well-established right from a second murder convic appeal degree on direct on defendant can attack tion based a guilty plea, only of the of the sen the voluntariness plea, validity and the related whether he introduced question tence the killing sufficient reduce to manslaugh evidence can issues also be raised in a ter. Since these collateral a denial of a defendant’s non right attack is appeal defendant where, case, is prejudicial an for review afforded collateral opportunity pro- 1 1966, 1580, January 25, P. L. §§1180-1 Act of 19 P.S. 1972). seq. (Supp. et 2 merely appellant was The record shows that told that he had appeal. days Wilson, forty-five See Commonwealth v. (1968). 1, 241 A. 2d 760 Pa. 430

343 Commonwealth ceeding. Minnick, v. 436 Pa. 258 42, 46, A. 2d 517 Commonwealth 515, (1969) ; v. Culpeper, Pa. 15, 252 A. 2d Common 18-19, 624, (1969); wealth Walters, A. 2d 74, 76, 757, (1968).

Equally lacking merit appellant’s conten tion that the evidence was insufficient to raise the crime above an voluntary manslaughter. When accused to murder pleads guilty he admits that he is generally, of second murder and that there is degree suffi cient evidence to sustain a conviction for second de gree murder. Commonwealth v. Dillinger, 440 269 A. 2d 505 (1970). Even an accused though enters plea he is still generally, given to introduce opportunity evidence that will mitigate the offense to voluntary manslaughter. Commonwealth ex rel. Kerekes 423 Pa Maroney, 223 A. 2d 337, 340, v. Walters, this Court held that whether trial erred to reduce the judge failing crime to voluntary manslaughter is a question in a cognizable collateral because it is an proceeding attack on validity not a question sufficiency of the evidence. carefully Having reviewed record, we conclude that the Commonwealth’s more a second adequately supported degree murder con viction. Three eyewitnesses saw appellant holding gun victim while the victim had his hands up, saw fire advance and at the victim and saw *4 fire as the victim fled. appellant again In his on attacking guilty plea based an uncon- stitutional must confession, appellant demonstrate all the that the of confession following: was unconsti- obtained; tutionally was the for the guilty motivation plea; and primary (3) that on the entry incompetent advice 449 of counsel. Commonwealth Taylor, 345, 296 344 appellant’s Initially (1972). note that we

A. 2d 823 freely. knowingly He was and made confession was by prescribed rights as of his constitutional advised (1966), he was when 384 U.S. Arizona, Miranda v. police again sta- taken into when advised arrested, formal he made his third time before tion and advised a warnings not Although had the Miranda statement. prior immediately given admission, oral been before his subsequent formal state- not invalidate his would 299, Abrams, 295, ment. held this Court A. 2d duty repeat Miranda prosecution absolute interrogation. stage warnings of an each successive at repeatedly of his appellant informed Here, intelligently freely rights chose and and constitutional appellant’s assuming rights. Even those waive constitutionally not con- we do infirm, confession was primarily motivated clude that his pleaded guilty appellant confession. It seems eyewitness facing order to avoid degree appellant might of first have sufficed to convict colloquy record from a murder. review Further, are convinced the trial court, between and voluntarily intelligently appellant knowingly, pleaded guilty. appellant’s are also unable find

We of advice counsel. was based competency of counsel’s advice does The test retrospective consideration whether involve wrong right ad or but rather whether the advice was range competence normally re within the vice was attorneys. quired of criminal defense McMann v. Rich Our there ardson, concern, 397 U.S. the reasonableness counsel’s assessment is with fore, subsequent including of his client’s case and his advice, entering plea. the effect of Com advice as to Ward, monwealth v. 2d 351, 354, *5 the circumstances (1971). Considering surrounding of a motion to the con- confession, suppress fession and the could estab- eyewitness that lish deliberate conclude defense that coun- killing, sel had a reasonable his client basis advising plead guilty. makes a number

Appellant claims to support final that his trial allegation counsel was incompetent. The only claim that we need that mention is counsel was because he failed to to the trial argue after judge, appellant pleaded generally and Commonwealth certified that crime rose no higher than second that degree murder, case rose higher voluntary manslaughter. ex Commomoealth rel. Washington Maroney, 235 A. 599, 604-5, 2d we stated that “the balance tips finding favor effective assistance as soon it is determined that trial coun basis,” sel’s had any decisions reasonable Upon review of the record counsel’s decision not to argue case rose no higher than voluntary manslaughter was reasonable.

Order affirmed.

Mr. Justice Roberts and Mr. Justice Mandebino concur in the result.

Concurring Mr. Justice Nix : I continue disagree with this Court’s determina tion order attack a ground it induced by an unconstitutionally obtained confession the test three-pronged formulated in Com Marsh, monwealth v. 440 Pa. 590, 271 A. 2d 481 (1970) , be As must met.1 noted Commonwealth v. Taylor, attacking In Marsh it established allegedly on an based unconstitutional confession the unconstitutionally demonstrate: the confession must (dissent 2d 351-52, and Man by Nix, Roberts, ing opinion J., J., “In the additional re derino, J., joined): my view, the entry now under Marsh quirement imposed [that *6 of effectively pre the was plea incompetently advised] confes vents a defendant from a coerced challenging a a entered sion in plea collateral where proceeding at trial. Even the record establish though may clearly in of consti the violation confession was obtained the guil tutional and did motivate primarily mandates be in the case at bar, denied, will ty plea, remedy of to establish that inability because the defendant’s fact . . . to enter the incompetent. the advice plea a of the there been determination pretrial [W]here to of the confession the admissibility adverse disputed it to establish that the advice defendant,2 impossible is the to is plea except perhaps enter rare instances where the is suppression ruling patently normal where there is some erroneous. situation, the and the is (as for the confession ruling damaging basis the there then a is reasonable basis usually case), is the suggest entry plea.”3 for an to attorney review record my since convinces However, was not the appellant’s primary me that major- for believe the the guilty plea, motivation rejected appellant’s attempt vacate his ity properly due an unconstitutional Even confession. Commonwealth Marsh, supra, the decision before primary obtained; the confession was the motivation for entry plea plea; was on incom- petent of counsel. advice constitutionality case, of the confession in the instant entry plea. challenged before been had primary interesting in the to note that case at bar a It majority’s conclusion that defense counsel had a for basis advising plead guilty his client was “the basis reasonable suppress the confession. . . .” motion to a in. did not a defend law this Commonwealth permit at trial to collaterally ant had entered who he coerced confession unless challenge allegedly could that his motivated prove primarily Baity, the confession. See Commonwealth v. A. v. Garrett, (1968) ; 229 A. 2d 922 (1967).4 concur the result. I, therefore, Mr. Justice Roberts joins concurring opin- ion. agree 4 I the record before also us fails establish that constitutionally infirm. confession was Appellants.

Thomas Seaman et al., *7 Eagin, Jones, Before C. J., January 9, 1973. Argued Manderino, Nix and JJ. Pomeroy, Roberts, O’Brien,