*1 represent staff sent to member of the Public Defender’s neophite substitute day on the of trial was a nothing staff, he “knew another member of the ready” proceed, all”, about the “not case at that he was that, quote again, he “never even voir him had ap- not the fault dired.” lack of readiness was This my pellant, caused the court and in view should have grant lawyer from the Defend- a continuance so and should er’s with the case Office who was familiar obtained, the new have been on or so that hand could be Merely lawyer or- adequately prepared. could become lawyer inexperienced der the to sit with the defend- new might through as be ant render assistance trial to such adequate. requested was, circumstances, not in these concurring NIX, joins opinion. J., in this Pennsylvania COMMONWEALTH of KITTRELES, Appellant. Theron Supreme Pennsylvania. Court
Argued June 1975.
Decided Jan. 1976. *2 Rosenblum, Phila- Rosenblum, & Robert M. Goldstein delphia, appellant. for Fitzpatrick, Atty., Gold- Steven H.
F. Emmett Dist. Div., blatt, Atty., Chief, Appeals Maxine Stot- Asst. Dist. Philadelphia, appellee. land, Atty., Dist. Asst. JONES, O’BRIEN, J., EAGEN, ROB-
Before C. MANDERINO, ERTS, POMEROY, NIX JJ. THE COURT
OPINION OF O’BRIEN, Justice. guilty plea of
Appellant, Kittreles, Theron entered general charge September to a of murder. On appellant was degree-of-guilt hearing held and adjudication of imprisonment, sentenced to life after an *3 a degree. 1968, appellant filed In murder in the first sought Hearing petition in which he Post Act Conviction guilty plea. hearing, the motion a his After withdraw post-trial appellant file permitted to was denied and was appeal pro tunc, This motions nunc which were denied. followed. appeal whether is
The sole raised this issue plea, guilty appellant his should be allowed to withdraw by plea motivated based on contention that his was constitutionally confession. Since allegedly an infirm plea appellant guilty on an based seeks to his withdraw confession, meet allegedly constitutionally he must infirm Marsh, 440 tests as stated Commonwealth v. appel (1970), that an 590, 271 we held A.2d wherein involuntary pretrial confes (1) lant establish an must by sion, plea primarily motivated (2) guilty was incompetently evidence, was the defendant such circumstances, rather by plead, in the advised counsel to than stand trial. that opinion of the case, we are
In the instant
Marsh.
three-prong test of
appellant
to meet
failed
testifying
Appellant’s counsel,
appellant’s
hear-
at
PCHA
appellant plead
ing
stated
the decision that
that
appellant’s
guilty
on the fact
that aside
was based
confession,
enough
con-
admissible evidence to
there was
ap-
and, therefore,
first-degree
vict
murder
penalty.
pellant pled guilty in
the death
order
avoid
Appellant’s
that after he
counsel testified
reviewed
police
indicating
summary
that
of the evidence
homicide,
fleeing
that
was
from the scene of the
arrested
finger-
weapon,
bearing appellant’s
knife
murder
a
prints,
recovered,
the fact
the decedent was
was
specific
heart, permits
an inference
a
stabbed
appellant’s
The court below
intent
kill.
concluded
by
plead guilty
primarily
not
motivated
decision to
allegedly illegal confession,
at-
but rather was an
tempt
penalty,
not
a reason that would
avoid
death
Henderson,
allow its
See Commonwealth v.
withdrawal.
is
Order
EAGEN, J., in concurs the result.
MANDERINO, dissenting opinion J., in which files joins. ROBERTS, J.,
MANDERINO, (dissenting). Justice ignores common law majority both the I dissent. The Pennsylvania. See Common statutory the law of and (1976) A.2d 847 Thomas, wealth Roberts, J.); Common (Manderino dissenting joined by -, Pa. O’Searo, wealth v. J.). by Roberts,
(Manderino dissenting joined deadly majority the use of a evidence of The holds that sup- body weapon part the is sufficient on a of vital good. far kill—so so port an inference of the intent accepted at and was first is reasonable This inference however, proceeds, majority then common law. ^ history explanation any the without basis without and elsewhere, to Pennsylvania the law of murder in- one had that from the first inference —that hold permissible tent to kill—a second inference is —that willful, deliberate, premeditated. defendant’s and act was effect, says proof of the of a majority use deadly weapon an upon in- a vital allows leap had a ferential conclusion the defendant to the specific kill, intent that conclusion warrants a sec- and killing leap ond inferential the conclusion premeditated. not, That is and and proper analysis has been a the law murder in not any this or other jurisdiction. possesses may may who kill not
One the intent deliberate, willful, have formed to kill in a intent premeditated to kill If intent was will- murder. ful, deliberate, killing is premeditated, degree. however, If, the first the defendant’s intent deliberate, pre- willful, kill in a formulated manner, meditated is not murder degree, degree. but has al- This second ways been the law. in all distinction is vital and the law is American
jurisdictions recognize degrees of which murder. *5 guilty degree] the de-
“To be first [murder only must not to kill he fendant intend but addition premeditate killing it. must and deliberate about generally guilty second can be held [A defendant] though that, theory on the ... premeditate he and deliberate, could not he could and (as shown,' in did at least have an intent to kill most cases, deadly weapon upon by his intentional use of a victim). Although may recognize presumption, from the law deadly weap- the fact that the defendant killed with a on, there murder, that the crime which he commits is presumption mur- is no is ; higher degree affirm- der for the there must be some support finding ative that the defendant evidence premeditate (Emphasis deliberate.” fact did added.) Scott, pp. Law,
LaFave & Criminal 563-564 authority Pennsylvania I else- have found no where, treatise, hornbook, encyclopedia, law review disagreeing law. article with the above statement of the every majority, there one of the cases cited weapon evidence in on a vital addition to the use of the could rea- which factfinder sonably only intended determine that defendant premedi- kill, but for had time though period. Those reflection —even for tated a short explained by properly cases LaFave were decided. As and Scott: time of the and at the
“On basis events before killing, the trier of will be entitled fact sometimes premeditated de- actually infer the defendant killing. categories of his intentional Three liberated important purpose: facts evidence are this prior to the ac- the defendant did how and what about activity engaged in di- he tual which show *6 planning activity, killing, is, rected toward the relationship prior and (2) facts about the defendant’s may in- from which motive be the victim conduct with killing ferred; the nature and facts about kill- may from be that the manner of which it inferred ing particular exacting and defendant was so according precon- intentionally must have killed origi- design.” emphasis in (Footnote omitted; ceived nal.) at
Id. 564. prior Pennsyl- I in admit certain statements some killing accompanied vania cases seem indicate by degree. equals an intent kill murder the first There is no basis for such in the law of mur- statements der, repudiated. language explicitly and such should be Pennsylvania,
In the first is a statu- tory part The first of the statute in effect at offense. killing the time of the for which here was con- victed, shall in- states that murder clude perpetrated 11 murder which shall be means
“[a] poison, lying wilful, wait, by any other kind of premeditated killing (Em- deliberate and . . . .” phasis added.) 24, 1939, 872, 701; 1,
Act of June P.L. 1959 P. Dec. § 1621, (18 4701). 6, 1 L. See also Act of P.S. Dec. § 1972, 1482, (18 334, No. 1 2501 and P.L. CPSA § § § 2502(a)). deadly weapon
We have often stated that the use
aof
part
body
supports
on a vital
of the
which
an
is evidence
malice,
inference of
and thus sustains a conviction of
degree.
Roots,
the second
Commonwealth v.
535,
(1973),
452
v.
Pa.
wealth
(1972),
v.
A.2d
Myers,
We have
convictions of murder in the first de-
gree
establishing
only
when the evidence
of a
the use
Weapon
part
body,
on a vital
of the
but also other facts
reasonably
which the factfinder could
conclude that
willful, deliberate,
premeditated.
cases,
weapon
these
the' use of a
on a vital
of the
specific
was sufficient
to establish
kill
intent
but
present
other
spe-
evidence was
to establish that the
cific intent
pre-
to kill was also
*7
511,
Petrakovich,
meditated. Commonwealth v.
Pa.
459
The May 28, here of murder arose from the 1964, stabbing death of Norman Kronen in a haberdash- ery Philadelphia, Pennsylvania. store in The decedent died of a stab wound heart. After a four-block chase from stabbing, the scene of appellant the the by police arrested a officer. degree
At guilt the hearing, prosecution of the intro- duced a statement, allegedly formal signed by made and the appellant, appellant in which the admitted that he had entered the intending store robbery. to commit appellant repudiated alleged testified the con- fession. He denied that he had entered the store with the robbery. intent to commit a He stated that he had entered purpose the purchasing shirt, store for the a and when the decedent buy shirt, tried to force him to struggle Appellant ensued. during stated that the pulled the deceased. struggle, knife stabbed he out a formal state- appellant the contents of said that although words, he conceded ment not his were signature was his. suppress
Appellant’s the state- counsel not move to did plead guilty, prior counseling ment object admissibility of the state- to the nor did counsel attempt hearing. guilt ment Counsel’s at questioning to his the statement was limited discredit hearing. guilt at the
During evidentiary counsel hearing, trial the PCHA in his suppress that he because testified did not move opinion, statement, prosecution had even without the in the first de- sufficient evidence to establish murder gree. He also that he did not advise testified explana- right appeal. of his on Based trial counsel’s tion, not in- court concluded that counsel was PCHA ex- effective and denied all claims made cept appeal appellant’s claim that he was denied his rights. granted post-trial Appellant right file appellant’s banc, considering motions. The court en post-trial trial counsel’s tactical also considered motions suppress saying: decision not move to he addition, “In trial counsel able indicated sup- made the tactical decision not to file motion to press indepen- the reason that evidence existed [for statement, dent to sustain a of mur- conviction *8 ” degree.] der in the first reading concurs, “Our the trial record with of the evi- defense counsel . . and hold that . we to crime dence to was sufficient raise the degree.” first erred
The the trial court contends that holding deprived assist- that he was not of the effective suppress ance to of counsel in that counsel not move did alleged prior advising to confession Appellant plead guilty generally. entitled to murder was Denno, suppression hearing. Jackson v. 378 U.S. Thus, 368, (1964). he was 1774, L.Ed.2d S.Ct. deprived unless the of counsel of the effective assistance failing particular counsel, course trial chosen suppress statement, basis had a move reasonable designed interest. to effectuate his client’s Washington Maroney, 599, 235 wealth ex rel. correctly prosecution trial court contends for decid- trial counsel reasonable basis held that had a hearing ing suppression request because not to prosecution’s was evidence, absent the statement even degree. Thus in the sufficient first establish hoping reasonably plea guilty, counsel advised had penalty avoid the death his client. If the record prosecution’s evi- sustained the there was claim dence, statement, support a aside from the verdict degree, agree with conten- the first I would its argu- record, however, tion. The does sustain presented. ment
Appellant’s alleged to rob that he intended statement provided of murder victim a basis for a verdict felony With- based on the murder statute. statement, however, out the there was no evidence perpetration or at- the murder was committed in the tempted perpetration robbery. no evi- There was of a anything from the dence that been taken victim had his the murder store. Neither was there evidence perpetrated lying wait, any other by poison, killing. The premeditated willful, kind of deliberate 701, as Code, Penal Act of June P.L. § amended, 18 P.S. 4701. § prosecution’s only the victim evidence was that bearing a knife
had been stabbed once in heart with appellant’s fingerprints im- and that mediately running away arrested as he was *9 Although eyewitnesses there no store. were establish store, what occurred the the circumstantial evidence certainly prove was sufficient that however, sufficient, stabbed the victim. It not was prove beyond doubt that reasonable premeditated. history only one and the facts of this case warrant appellant’s conclusion: no counsel had reasonable prosecution concluding basis for had sufficient evidence to establish murder in the first without appellant’s Thus, the use of no counsel had confession. failing suppress basis for the confession. accept
I thus cannot the contention that trial counsel’s suppression failure to move for had a reasonable basis designed his effectuate client’s interest. Washington Maroney,
wealth ex rel. (1967). court en PCHA and the court holding deprived erred banc was not the effective assistance of counsel.
I appellant’s have not considered the merits of the suppressed. claim that his confession should have been arguments These be addressed to the trial court should during suppression hearing.
This case should be
for the
remanded
the trial court
purpose
holding
suppression hearing
to determine
admissibility
allegedly
of the statement
made
appellant.
If the trial
rules that
court
statement
inadmissible,
suppressed;
it should be
guilty plea;
should be
his
allowed withdraw
and a new
trial should be
If the trial court determines
awarded.
suppressed,
judg-
statement should
be
Denno,
ment of sentence should be affirmed.
Jackson v.
378 U.S.
Proper appeals then should be allowed from the trial court’s order.
ROBERTS, J., dissenting joins opinion. in this