COMMONWEALTH of Pennsylvania, Appellant, v. Carl Vernon NELSON, Carl Vernon Nelson, Carl V. Nelson, Carl Vernon Nelson.
Superior Court of Pennsylvania.
Submitted Oct. 10, 1989. Filed May 8, 1990.
574 A.2d 1107
Kenneth L. Crosby, Warren, for appellee.
Before OLSZEWSKI, KELLY and JOHNSON, JJ.
OPINION BY OLSZEWSKI, Judge:
This is an appeal by the Commonwealth from an order granting appellee relief under the Post Conviction Relief Act,
The undisputed facts, as summarized by the PCRA judge, are as follows:
On August 25, 1977, Defendant was arrested for the slaying of Jess Perry and his attempt to kill Perry‘s daughter. As a result of plea negotiations on charges of homicide, Defendant entered a guilty plea to third degree murder and attempted murder, and in doing so [inculpated] Thomas Eaton and gave sworn statements Eaton had solicited Defendant to murder the victim, giving him the murder weapon and ammunition to do so. As a result Eaton was charged with solicitation of murder and violation of the Uniform Firearms Act. Eaton was granted a change of venue to Mercer County on those charges, and Defendant was subpoenaed from his imprisonment to the trial by the District Attorney as a Commonwealth witness. Prior to Defendant‘s perjured testimony,3 he had recanted his accusations against Eaton to Eaton‘s counsel which was also known by the District Attorney of Warren County, and this possible recantation at the Eaton trial was made known to the trial Judge with a request the Court call Defendant as a court witness in the Eaton trial. Without counsel, Defendant was compelled by the Court
to testify [on October 11, 1978] and consummated his perjury, notwithstanding Defendant‘s attempt to plead the Fifth Amendment, which was denied by the Court. As a result of the recantation, Defendant was charged in Warren County with the aforesaid perjury and false statements. Court-appointed counsel was assigned to Defendant on these charges, and again Defendant entered a plea of guilty4 before the Warren [County] Court with his counsel advising the Court there was no viable defense. On December 7, 1988, after argument on Defendant‘s petition, [the P.C.R.A. court] granted Defendant leave to withdraw his guilty plea to the perjury and false statement charges, however, conditioned the withdrawal granting leave to the Commonwealth to supplement the records of both Warren and Mercer County courts that would show any evidence that would reasonably require a different disposition. At the Commonwealth‘s request [the court] held an evidentiary hearing with Defendant present and represented by court-appointed counsel. At this hearing [the court] gave the Commonwealth wide latitude to show any evidence Defendant was not entitled to the relief sought.
P.C.R.A. court opinion at 4-5. On March 3, 1989, the PCRA court issued an order granting appellee leave to withdraw his guilty pleas to perjury and false swearing. From this order the Commonwealth appeals. Because the PCRA court properly determined that appellee was entitled to relief, we affirm its decision.
The Commonwealth‘s sole issue in this appeal is, “Whether appellee‘s testimony exculpating Eaton at Eaton‘s trial was compelled, where appellee, aware of his fifth amendment rights, freely and voluntarily testified on direct examination, and subsequently claimed the fifth amendment on cross-examination?” This argument relates only to
I.
In reviewing an order granting a PCRA petition, we follow the same standard applicable under the former Post Conviction Hearing Act (“PCHA“).6 We look to whether the PCRA court‘s determination is supported by evidence of record, and is otherwise free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982).
II.
In order to set aside a plea of guilty under the former PCHA, a defendant was required to demonstrate three things: first, the existence of constitutionally infirm incrim-
Like the former PCHA, the PCRA authorizes a grant of postconviction relief based on the violation of constitutional rights, ineffective assistance of counsel, or an unlawfully induced guilty plea.7 The PCRA, however, has additional
III.
The first factor of the Marsh I test requires us to determine whether the testimony appellee gave at Thomas Eaton‘s trial on October 11, 1978 was constitutionally in-
It is undisputed that the district attorney, Eaton‘s attorney, and the trial court all knew before appellee was called to testify that appellee had recanted his prior testimony implicating Eaton. Furthermore, the parties took the unusual step of having appellee called as a witness for the court in order to allow both the prosecution and defense attorneys to cross-examine appellee. Appellee was transported from his prison cell to Mercer County and testified under subpoena. He was not represented by counsel and was not advised by the court, by the district attorney or by Eaton‘s defense attorney that he had any rights against incriminating himself concerning prior perjury or false swearing. It was not until after appellee had inextricably implicated himself that the district attorney even suggested to appellee the possible consequences of his testimony. When appellee attempted twice to assert his fifth amendment rights on his own he was rebuffed. The first time appellee asserted his rights, he was ignored. The second time he was told, by the trial judge: “[Y]ou have no right to plead the Fifth Amendment. You pled guilty to the crime which you were charged with and you have no right and we will instruct you to answer the question, please.” Transcript of October 11, 1978, at 64.
A plea of guilty to a criminal charge is generally regarded as a waiver of the privilege against self-incrimination with respect to that charge. Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978). The rationale behind this rule is that once a person has been convicted of a particular crime, it is not possible to become any more
Specifically relating the law of self-incrimination to the crime of perjury, one federal court has stated:
a witness may not claim the [fifth amendment] privilege out of fear that he will be prosecuted for perjury for what he is about to say, although he may claim the privilege if his new testimony might suggest that he had perjured himself in testifying on the same subject at a prior proceeding.
United States v. Partin, 552 F.2d 621, 632 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). See also United States v. Fortin, 685 F.2d 1297 (11th Cir.1982) (guilty plea to counterfeiting charges does not waive right against self-incrimination with respect to potential perjury prosecution).
In the instant case, the Commonwealth has never alleged that appellee‘s testimony of October 11, 1978 constituted perjury. The Commonwealth‘s theory throughout has been that appellee‘s testimony on that date was a confession which implicated him in prior crimes of perjury and false swearing.9
The Commonwealth cites Commonwealth v. Tracey, 137 Pa.Super. 221, 8 A.2d 622 (1939), for the proposition that appellee‘s guilty pleas to murder and attempted murder waived his right not to incriminate himself in perjury and
The Commonwealth argues that appellee should have notified the district attorney, Eaton‘s attorney, or the court that he intended to exercise his right not to incriminate himself, before he testified on October 11, 1978. Nowhere does Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985), cited by the Commonwealth, hold that a witness must reserve in advance his constitutional right not to incriminate himself. Cieri is premised on the assumption that a witness knows he is a criminal suspect, and holds that if it is clear that the witness will plead the fifth amendment, he need not be called to testify. As we note elsewhere in this opinion, although the district attorney asked the judge to notify appellee of his rights, neither the district attorney, the defense attorney, nor the judge actually did notify appellee of his rights before he testified. This was despite the awareness of all three that appellee had recanted his prior testimony.
The Commonwealth also argues that appellee waived his rights against self-incrimination by testifying on direct examination. While it is possible to waive even constitutional rights,
the waiver of a constitutional right must be made knowingly and intelligently; to be a knowing and intelligent waiver, the defendant must have been aware of both the right and the risks of forfeiting the same. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
The Supreme Court states, in Miranda v. Arizona,
“[T]he requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States, 168 U.S. 532 [18 S.Ct. 183, 42 L.Ed. 568 (1897)][.]”
Miranda v. Arizona, 384 U.S. 436, 462, 86 S.Ct. 1602, 1621, 16 L.Ed.2d 694, 716-717 (1966).
We cannot agree with the Commonwealth‘s suggestion that appellee‘s uncounseled testimony, which he gave under subpoena, and was brought from his prison cell to give, constituted a voluntary waiver of his right against self-incrimination. Appellee‘s confession, compelled and without the assistance of counsel, constituted a violation of his rights against self-incrimination, both under the fifth amendment of the U.S. Constitution, and under article I, § 9
IV.
The second factor of the Marsh I test, as modified by the PCRA, requires us to determine whether “the circumstances make it likely” that the unchallenged existence of appellee‘s confession caused him to plead guilty.
V.
Finally, Marsh I, as modified by the PCRA, requires us to determine whether appellee was incompetently ad-
We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client‘s interest. If he did, our inquiry ends. If not, [we will reach a conclusion of ineffective assistance if the defendant] demonstrates that counsel‘s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings.
Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). As we have already determined that appellee‘s self-incrimination claim is meritorious, see supra, we may proceed directly to the second stage of the ineffectiveness analysis and ask whether appellee‘s prior counsel had any reasonable basis for counseling appellee to plead guilty to perjury rather than proceeding to trial and challenging the admissibility of appellee‘s confession. Appellee‘s former counsel was asked if he had ever thought of filing a motion to suppress the transcript from the Mercer County trial of Thomas Eaton:
A No, I did not. I can recall that I gave some thought to the question of whether he had any privileges against self-incrimination and I concluded that that was of no avail to me and it never occurred to me that there might be any Miranda Warnings necessary.... I later learned just very recently that, perhaps, he did not have a lawyer with him in Mercer [County] at the time he made the statement
Q If I may interrupt, so ten years ago when Mr. Nelson plead guilty, were you aware that he didn‘t or were you aware whether he had an attorney there or not?
A I am confident I had assumed that he did and it‘s only recently that I learned, perhaps, he did not....
PCRA transcript of January 19, 1989, at 5. It is clear from the record that at the time he counseled appellee to plead guilty, counsel had not even considered whether appellee‘s testimony of October 11, 1978 was admissible. Evidence in the record therefore supports the PCRA court‘s finding that appellee‘s former counsel had no reasonable basis for his recommendation that appellee plead guilty, rather than move to suppress appellee‘s uncounseled confession of October 11, 1978.
The final factor which must be present in order to find appellee‘s former representation ineffective is prejudice. Appellee must demonstrate that the choice of going to trial and challenging the admissibility of his October 11, 1978 testimony offered a substantially greater potential for success than pleading guilty. Commonwealth v. Taylor, 348 Pa.Super. 256, 502 A.2d 195 (1985).
In this case, the only indication in the record concerning the evidence against appellee appears in the probable cause affidavits attached to the four criminal complaints filed on November 15, 1978. All four affidavits allege that the affiant saw and heard appellee give one version of the story concerning the shootings of August 25, 1977 before October 11, 1978, and a different version of the story when he testified on October 11, 1978. If appellee had gone to trial and successfully challenged the admissibility of his confession, we are not aware of any evidence the Commonwealth would have presented against him, except for his original statements of April 18, 1978, April 19, 1978, May 10, 1978 and May 24, 1978. Since the only evidence admissible against appellee would have been of four consistent statements, with no proof that the statements were untrue, appellee was clearly prejudiced by prior counsel‘s failure to challenge the admissibility of his confession. We find fur-
As all of the Marsh I factors, as modified by the PCRA, have been satisfied, we affirm the PCRA court‘s grant of relief. Order affirmed.
KELLY, J., dissents.
KELLY, Judge, dissenting.
I agree that appellee‘s constitutional rights were violated when the trial court failed to honor his assertion of his Fifth Amendment right against compulsory self incrimination. I emphasize though, that I would not find open court to be a custodial setting warranting Miranda warnings to a prisoner witness facing a so-called “perjury trap.” Commonwealth v. Williams, 388 Pa.Super. 153, 565 A.2d 160 (1989); Commonwealth v. Melson, 383 Pa.Super. 139, 163-75, 556 A.2d 836, 848-53 (1989) (Kelly, J., dissenting). However, when, as here, the prisoner witness in open court asserts his Fifth Amendment rights not to confess past perjury, that right must be honored. Here, that right was not honored.
My disagreement with the majority has to do with its construction of
Here, as in Ryan, the defendant acknowledged guilt and made no timely attempt to withdraw or challenge the plea,
Our legislature has restricted the grounds for relief via PCRA proceedings to constitutional violations “which, in the circumstances of the particular case, so undermine the truth determining process that no reliable adjudication of guilt could have taken place.”
Similarly, I find no “unlawful inducement” (
Essentially, appellant lost the chance to risk a throw of the dice. I do not read the new PCRA act to provide for the recovery of such losses.
Hence, I respectfully dissent.