*1 of her identification several occasions unsure should receive her jury jury proper given, caution. With instruction none of the free to as true all, part of, the witnesses. Commonwealth testimony presented by Winebrenner, (1970). 2d 73, 265 ap- returned, Once a verdict test applies determining sufficiency pellate evi- all of the whether, accepting the evidence is true is suf- dence favorable to that evidence prosecution, a reasonable prove beyond ficient law to doubt been the accused is of the crime of which he has convicted. Commonwealth Malone, A. 2d 866 We have examined the record and find evidence sufficient. affirmed.
Judgment Appellant.
Commonwealth v. April Argued C. J., Before 20, 1972. Eagen, Jones, *2 JJ. and Nix Manderino, Pomeroy, Roberts, O’Brien, Mm Gent, D. with McDonald, Jr., Quinn, James appellant. d for Leemhuis, Buseclc Attorney, Agresti, D. Assistant District
Charles Kennedy, Attorney, District him R. Gordon appellee. Commonwealth,
Opinion 1972: Mr. Justice June O’Brien, 28, appellant, Marsh, Vernon 15, 1966, November On charg- plea general indictment entered slaying ing of one Bruno C. Roehrl him with the Township, County, Pennsylvania, Erie on Harborcreek February After before the court 10, adjudged guilty first-degree mur- he was banc, en imprisonment. appeal to life No and sentenced der judgment filed at that time. Novem- from post-conviction petition, he had filed 1967, ber, file motions the court permitted appellant post-trial plea then that his alleged nunc tunc. pro be invalidated because was primarily should incriminating or motivated existence induced On from appeal obtained. unconstitutionally evidence appel- the denial of these we held that since motions, was made with the advice of plea counsel, lant’s incompe- that counsel’s allege advice was fail. his attack on must of his tent, 2d constitutionally we also found that (1970). However, - admitted proscribed during degree-of guilt hearing judgment vacated the hearing for another remanded case at which such evidence would not be admitted.
On remand, upon counsel, agreed May court below 21, 1971, suppress *3 - testimony given by appellant degree-of at the previous that guilt hearing, because have been might impelled by the Commonwealth’s previous use tainted v. Harrison United 392 evidence, citing States, U.S. 2008 219, S. Ct. A deter (1968). hearing mine the was then 1971. degree guilt set for June 18,
During period the between the 21May suppression order and the June 18 hearing date, there frequent were negotiations between attorneys and the of- fice of the District of Erie Attorney County. Those culminated negotiations agreement between op- that posing would stipulate rose no degree guilt higher that than second de- for an gree exchange agreement on the part of the forego further appellant any appeals attempting the existing guilty plea. invalidate The court refused accept agreement and, a granting of permit continuance Commonwealth to obtain all the second of its witnesses, hearing July 28, held on the appel that finding resulted
This hearing After degree. in the first murder guilty lant was imposition motions and the of his post-trial denial filed imprisonment, appellant sentence of life first that appellant alleges On appeal, appeal. that ap refused the stipulation
court should not have
second-degree
did not rise above
pellant’s guilt
the Commonwealth should not be allowed
recog
We have
agreement.
repeatedly
disavow
nized that
is an
method
plea bargaining
appropriate
of criminal cases. Commonwealth v. Alvara
disposing
442 Pa.
do,
516,
;
2d 526
(1971)
Wilkins,
A. 2d 341
Com.
524,
(1971) ;
ex rel.
Kerekes
In the instant case, plead did not as the result of an agreement reached with the Commonwealth. Instead, plea made prior to the agreement and we had held that already that plea could not be withdrawn. Commonwealth v. supra. The only agreement made by the ap- pellant was that he would make no further appellate or collateral attacks the validity of his if the Commonwealth would stipulate that his degree of guilt rose no higher than second-degree murder. The court was not bound to accept the agreement and the appel- *4 lant in has, fact made further attacks on the validity of the plea, which we will deal with herein.
Since appellant’s counsel admits that he was not lulled by reliance on the alleged agreement into failing to prepare properly for the hearing, appellant is en- titled to no other remedy. also contends that the evidence produced
at the was degree-of-guilt hearing insufficient to prove in the first in degree. addition to which plea, establishes that shot the person who decedent, also offered the evidence: following The victim’s body was between 6:30
(1) discovered, 7:0Q behind the bar of his tavern near p.m., lying cash drawer open which was devoid of completely money. A -witness testified
(2) that he had been the de- cedent’s tavern at 4:30 at p.m., pur- which time he had drinks chased with a five-dollar bill which had been cash put register. Another witness
(3) testified that at 5:30 p.m., had lent the appellant because money he had no $1.50 9:0Q but at whatsoever, p.m., the same witness observed that appellant had a handful of bills totalling $50 in his possession. This witness $60 also testified that he had seen a loaded pistol with live on the cartridges the appellant’s floor of automobile approximately 5:30 p.m. There
(4) was evidence to indicate that a minimum of five shots had been fired at the decedent.
In of this light evidence, the court below justi- fied finding the facts and circumstances indi- cate a reasonable beyond doubt the decedent was a robbery shot of his tavern during a first-degree crime was murder. come
Now we to the appellant’s renewed attacks on of his guilty plea. Appellant recognizes that we have already refused to vacate Ms disposition previous our appeal. Common supra. wealth that decision, we adopted Marsh of McMann v. reasoning Richardson, U.S. 759,
297 held that (1970), Ed. 2d L. Ct. S. prove must a defendant a guilty plea vacate to order consti- motivated by primarily was that his and that incriminating infirm tutionally counsel advised incompetently was “defendant stand rather than in the circumstances, plead guilty, Marsh, supra, page at trial.” his on attack Most of appellant’s in his made repetition arguments is fol- for petition reargument or :in his previous appeal con- still decision in that We are appeal. our lowing that decision. vinced of the correctness of he permitted was upon request appellant, spe- a new trial include amend his for him coun- given the advice cific allegation in- entered originally sel the time his was plea, at allegation Since this was made given. competently under previous appeal, since, v. Richardson, McMann if supra, allegation law of is to be correct be entitled to appellant would proved shall now plea, withdraw we decide that issue. when him argues that counsel advised after a court de-
plead guilty, suppression judge had that his confession was termined admissible, him advice incompetent was because it was not giving a reasonable interpretation au- existing based thority. competency
The test of counsel’s as advice, forth McMann set Richardson, supra, “. . . as initial depends 771: not on whether matter, retrospectively would consider counsel’s advice but on whether right wrong, be that advice was range competence within demanded of attorneys cases.” criminal inadmissible, we found that appellant’s When confession was solely e so because we were not per w fully apprised suaded that the pro Commonwealth would bear the economic costs of viding appellant indigent, counsel, if he were required by Miranda v. 16 L. Arizona, U.S. 436, authority Ed. 2d 694 There was little inter preting conveyed prop hoAV information should be *6 erly. justices disagreed of the Two seven of our court dissent, with that decision. See Justice Pomeroy’s supra, page Commonwealth suppress pretrial When his to confession was denied, his counsel Avasfaced with the appellant go decision Avhether to let to trial and penalty plead guilty risk a death or to and take his three-judge panel chances awith at a hearing. Considering strong that this robbery-murder, say a cold-blooded we cannot that the advice received from his not range competence “within the demanded of attor- neys in criminal cases.” See Com. v. Ward, 2d 92 351, 355,
Judgment of sentence affirmed. Opinion
Concurring Mr. Justice Roberts: majority I concur the result reached and following add the observation. majority points In as case, this out,
entry any part plea not as of a bargain, agreed certify ap- degree pellant’s guilt higher rose no than second degree appellant’s agreement in return for forego right any guilty plea by appeal to invalidate his majority points or collateral attack. As the also out, authority accept any the trial court has the to refuse to arrangement post-plea prosecutor between a and the de- just authority trial court has the fense, to refuse any plea accept bargain. only trial court my view, however, ar- post-plea to refuse to authority have but been here, that was made it would have rangement such an I arrangement. error for the coui't to accept do not believe that courts allow a defendant his bargain away rights
should review of his conviction appellate or rights If collateral attack. voluntarily, has been intelligently, lawfully entered, there no need to seek a further concession from prosecutor a defend- ant that he surrender whatever additionally rights he have to may appeal direct collateral To review. such arrangements sanction serves no interest proper of justice and would only invite insulate attempts guilty pleas unlawfully obtained from appropriate ap- pellate review.
Mr. Chief Justice Jones and Mr. Justice Manderino join this concurring opinion. *7 v. Barnes, Appellant.