Opinion by
On Junе 22, 1953, the appellant, Walter Henderson, while represented by counsel, entered a general plea of guilty to an indictment chаrging him with the murder of Alice Grace Storch in Butler County. Russell Budd, who was also indicted for murder in connection with the Storch killing, pleaded “not guilty.” 1 Budd was immediately placed on trial before a jury, and Hender *257 son testified as a Commonwealth, witness detailing Row Re and Budd committed tRe fatal assаult upon tRe victim. Before so testifying, Henderson was not advised, either by the court or by Ris counsel who was present, of Ris constitutional right agаinst self-incrimination. 2
Subsequently, on June 26, 1953, a Rearing was Reid before the trial court to determine Henderson’s degree of guilt. By stipulation of cоunsel, the recorded testimony of Henderson and of thirteen other witnesses 3 at the Budd trial, plus a recorded statement given by Henderson to the police following Ris arrest, were introduced in evidence and made part of the record at the Rearing. TRe court found Henderson guilty of murder in the first degree, and sentenced him to life imprisonment. An appeal from the judgment was not filed within the statutorily prescribed timе.
On May 23,1968, Henderson filed a petition seeking post-conviction relief. After an evidentiary Rearing the petition was dismissed, but Henderson was рermitted to file a direct appeal from the 1953 judgment of sentence as if timely filed. This appeal followed.
TRe assignments of error will be discussed ad seriatim.
It is first asserted that the рlea was not voluntary or “made with understanding.” Since the plea was entered prior to the announcement of our decision in
Commonwealth ex rel. West v.
Rundle,
Next it is argued that the plea was unlawfully induced and, in support of this contention, Henderson testified at the PCHA hearing that his trial counsel urged him to plead guilty and implied that if such a plea were not entered, Henderson wоuld probably be sentenced to death, and that his guilty plea was entered with the thought in mind that leniency would result. A plea of guilty which would not havе been entered except for the defendant’s desire to avoid a possible death sentence does not necessarily dеmonstrate that the plea was not the product of a free and rational choice.
North Carolina v. Alford,
Next, it is maintained, that Henderson was denied “competent” trial counsel, and this is based solely on the premise that his trial counsel erred in advising Henderson to plead guilty. This is clearly without merit and requirеs no extended discussion.
*259
As pointed out in
McMann v. Richardson,
Next, it is argued, that since Henderson’s testimony at the Budd trial was given without notice or awareness of his right against self-incrimination, the use of this testimony at his own degree of guilt hearing violаted constitutional due process.
4
With this we agree. Before Henderson was permitted to testify at the Budd trial, he should have been fully advised and made aware of his constitutional right against self-incrimination. See
Grosso v. United States,
*260
As noted before, during the PCHA hеaring a statement given by Henderson to the police after his arrest was admitted in evidence,
5
and this statement was substantially identical with Henderson’s testimony during the Budd trial. Moreover, there was other evidence which substantiated the truth of this statement. We are, therefore, persuaded beyond a reasonable doubt that, even if the now challenged evidence were excluded at the hearing involved, the аdjudication would have been the same. Cf.
Chapman v.
California,
Finally, it is urged that evidentiary use against Henderson of the testimony of witnesses at the Budd trial (at a time when he was not present) violated his right to confront the witnesses against him. This issue was never raised in the court below and will not be considered when advanced for the first time on appeal. Cf.
Commonwealth v. James,
supra, at 209, and
Commonwealth v. Payton,
Judgment affirmed.
Notes
It was the Commonwealth’s сontention that the victim’s husband hired Henderson to kill his wife, and Budd assisted in the killing. Mrs. Storch died from strangulation, but her body also suffered fifteen stab wounds.
Budd was found guilty оf murder in the first degree, and punishment was fixed at life imprisonment.
The testimony of these thirteen witnesses was given at a time during the Budd trial when Henderson wаs not present in the courtroom. However, Henderson’s trial counsel was there as an observer.
This, however, would not invalidate the guilty рlea, but would require a vacating of the sentence and a new hearing to determine the degree of guilt. Cf.
Commonwealth v. Marsh,
In Ms brief, counsel for Hendersоn argues that the statement was coerced and, therefore, constitutionally inadmissible as evidence. However, evidentiary use оf the statement was without objection. Moreover, no evidence to support the coercion contention appеars in the record. Finally, this question was never raised in the trial court. Under such circumstances, the present attack on the statement is precluded. Cf.
Commonwealth v. James,