*1 form the clear agreement Here we have written there common a time albeit when marriage, law, legal marriage obstacle or to a impediment was no is suffi- kind. decided that Having writing common we cient to establish of a law proof marriage, need of cohabitation proof not consider whether establishes inde- corroborates or reputation either common validity marriage. law pendently Decree reversed. Costs on the estate. Sampson, Appellant.
Commonwealth *2 C. J., November Before Argued 30, 1970. Bell, Pomeroy, Jones, Roberts Cohen, Eagen, O’Brien, JJ.
E. A. Weis, Assistant Public him Defender, with John Packet, W. Assistant Public and Vin- Defender, cent J. Ziccwrdi, for Defender, appellant. D.
James Crawford, Deputy District with Attorney, him T. Michael Mather Milton and M. Stein, Assistant District Richard A. Attorneys, First Sprague, Assist- ant District and Arlen Attorney, District Specter, At- for torney, Commonwealth, appellee.
Opinion Jones, December 1971: 29, Mr. Justice On 30, September 1953, appellant entered to murder generally. Found first de- a court en he gree banc, was sentenced to life There no was imprisonment. motion for a new no from trial and appeal original sentence. Seven
561
of habeas
for writ
a petition
later
filed
appellant
years
on the narrow ground
denied
which was
corpus
for
a substitute
as
employed
cannot
habeas corpus
Com,,
Pa.
Myers, 402
Johnson v.
an
ex rel.
appeal. E.g.,
cert.
366 U.S.
denied,
A.
451, 167
2d
(1961),
the denial
affirmed
similarly
On
we
(1961).
appeal
rel.
ex
Sampson
on
Com.
point.
relief
this procedural
(1962).
The evidence at the presented hear- degree-of-guilt ing reveals that appellant two co-defendants con- to rob a taxicab. spired there is some Although dis- pute, evidence overwhelmingly demonstrates appel- lant’s knowledge fact that one of his accomplices was armed with an automatic pistol. The three con- then spirators engaged with taxicab, another seated the back seat while the actual slayer on sat side in the passenger’s front seat. After the cab driver had driven several miles, “triggerman” brandished his weapon and ordered the cab driver to later stop. Seconds the cab driver was fatally wounded. *4 Although was appellant not the actual killer, each in- dividual charged was with murder under the felony rule.
In our view, appellant’s principal contention is that his guilty plea unintelligently entered since it was accompanied testimony by establishing complete de- fense and should have been rejected. Despite an evi- if be-
dentiary evidence, there is substantial conflict, conspirators his fellow both lieved, that immediately the after the cab in the back seat fled appel- halt; the cab driver actual assailant ordered thirty-five fifty allegedly from feet the lant was any examina- the Before taxicab he heard shot. when testimony, whether tion of we must first decide exculpatory guilty plea. the evidence would vitiate (1970),
In North Carolina v.
Alford, 400 U.S.
Supreme
faced
whether
Court was
with
issue
guilty plea may
accepted
accompanied
be
when
testimony
accused’s
that he had not
shot
victim.
question
This
in the
was answered
affirmative: “while
pleas
most
consist of both a
waiver
trial
express
guilt,
and an
admission
the latter element
requisite
imposition
is not a
constitutional
penalty.
may
criminal
An individual accused of crime
voluntarily, knowingly,
understandingly
consent to
imposition
prison
of a
if
sentence even
he is un-
willing
participation
or unable to admit his
in the acts
constituting the crime.”
56B that is readly apparent cases it From these responsibility a flat denial with solely coupled from a distinct and separate entirely is an establishing of facts an assertion accompanied it is error situation, in the latter affirmative defense; excul- Owing appellant’s the guilty plea. to accept the fits within evidence, appeal properly this patory next our level in Roundtree, As Roundtree rationale. of the facts an examination upon devolves inquiry constitute and whether they asserted by valid defense. if that it established a host is well
By
opinions
all
a robbery,
a homicide occurs
the furtherance
those
absent
physically
who participated,
including
from
are equally responsible
the scene
the crime,
de
the homicide
committed
provided
that
fendant or an
furtherance of
acting
accomplice
Williams,
v.
443 Pa.
E.g.,
felonious
Com.
undertaking.
rel.
277
781
Com. ex
85,
;
Myers,
A. 2d
Smith
(1971)
Pa.
438
cide, 40 C.J.S. §§40, (1968); §9(e)(3) Criminal Law Wharton’s (1944); Procedure We are opinion that appellant’s meet does not the criteria of testimony this defense that court below properly accepted appellant’s guilty plea.
Accepting appellant’s there is no testimony, doubt unlike Frank appellant, Doris, voluntarily with- appellant’s design. the common from However, drew nigh testimony well demonstrates his abandonment was He not leave simultaneous with the fatal did shot. “triggerman” pistol taxicab until revealed *6 Considering appellant’s stop. ordered the cab driver to thirty-five fifty distance of taxicab at from the feet abrupt departure the time of from the his shot, Although preceded by taxicab the shot scant seconds. appellant’s joined appellant’s co-felon in the back seat any there is no exit, assertion that communication was relayed appellant’s to the actual killer than de- other parture. guilt engaging “The of one in an unlawful enterprise part encouragement consists in the support gives that he to those who commit the crime; encouragement and the influence and effect con- of such by encouragement tinue until he withdraws the acts showing or disapproves opposes words that he or contemplated escape responsibility crime. He cannot merely by expedient running away.” of Am. Jur. (1968). 2d Homicide
Appellant
plea
next contends that his
of
was
knowingly
intelligently
not
entered. Certain facts
support
are
(1)
stressed
of this contention:
he was
years
age
sixteen
of
time
of trial with a reduced
(2) appellant’s
intellect;*
mother and his counsel es
sentially
plead guilty
made the decision rather than
appellant
(3)
unintelligently
was
entered
as counsel led
to believe his
could
be withdrawn if there was merit to his defense of with
From
drawal.
our examination of the
we
record,
are
persuaded
not
points.
the first and second
e.g.,
See,
Moore,
Com.
86, 90-91,
Since it is well settled that evidence good acter is re admissible a murder trial and is to be garded as evidence of a substantive fact like evidence tending establish Com. innocence, e.g., Aston, 227 Pa. 75 Atl. con (1910), appellant tends the trial court erred when it rebuffed counsel’s *7 attempt introduce character testi reputation mony prior to the adjudication of guilt; evidence for subsequently received sentencing purposes. light the for reason this rule of evidence—the defend in ant a criminal case is permitted to prove his good character in order to negative his participation the acts I charged, on Wigmore ed. Evidence, (3d 1940)—one can seriously the question relevance of such evidence a following to an plea indictment charg ing felony-murder. the Despite burden on placed Commonwealth to all the prove elements of first degree murder after a guilty plea to murder generally, e.g., Com. ex rel. Kerekes v. Maroney, 423 Pa. 223 A. 2d 699 (1966), felony-murder case normally removes issue of participation; issues that the Commonwealth must prove, such as whether the homicide occurred in furtherance of the felony, are unaffected by evidence of the accused’s good character where the accused is not the actual slayer.
5'68 with, In any event, object failure to coupled counsel’s to the court’s character delayed receipt appellant’s we are of evidence, trial court did opinion not commit any fundamental error.
Lastly,
in
appellant contends his trial counsel was
effective for three reasons:
failed to move
(1) counsel
for a withdrawal of the guilty
and assert
the de
fense of withdrawal;
(2) counsel
failed
correct
court’s mistaken impression that
was seven
teen
years
age
time of the offense whereas
appellant was one month
short
sixteen;
(3)
counsel unrealistically
emphasized the
charges
death penalty. The first argument
been fully
has
treat
ed earlier and the second is
The
insignificant.
third
contention
may
persuasive in the proper case; how
ever, this element was but one factor in counsel’s trial
strategy. Viewing counsel’s principal objective to ob
tain a lesser conviction even
though
Commonwealth
on
proceeded
theory
cf.,
felony-murder,
Com. v.
Hoffman,
Mr. Justice concurs in the result. Mr. Justice Cohen took no part the decision of this case. *8 by
Concurring Opinion Mr. Justice : Roberts I concur in Although I result, find many the views contained the majority opinion to be I wholly am unacceptable. thus impelled to explain my disagreements.
567 Plea Guilty I. court did trial
I that agree majority with the “if rule that the settled not in the instant case violate and in to a criminal charge defendant pleads guilty facts asserting the plea by next breath contravenes not guilty, if that he is would establish which, true, re- then no his is of effect and should jected.” Roundtree, 199, Commonwealth v. States 202, A. 2d See United 709, also, ex rel. Crosby v. 404 P. 2d 801-02 Brierley, 790, (3d Cir. 2d Hulsey States, v. United 369 P. 1968); 287 (5th 1966). Cir.
The
necessary elements
defense
with-
prior
drawal were
set forth
definitively
Court
Commonwealth v.
Doris,
Shortly guilty murder generally, at the testified degree guilt hearing that he from the had bolted taxicab his co-felon had after drawn he pistol was but thirty-five to fifty feet when the co-felon away fatally shot the driver. his own Since appellant admission “withdrew” only had weapon after the already been brandished *9 568 before only seconds fligM a few scant occurred
and Ms guilt degree hear- testimony of at the homicide, the felony murder to the ing a defense not establish did charge. by pro- majority opinion however, continues,
The plea guilty following “[A] pounding dictum: the responsibility is solely of coupled flat deMal awith ac- entirely separate from a distinct establishing an by companied of facts an assertion error it is situation, latter in the affirmative defense; surely plea.” a distinction accept TMs is to the or unsupported reason either a difference, without precedent. forbidding underlying the rule the
One rationale
substantially
coupled
acceptance
awith
of a
exculpatory
contemporaneous
is the
facts
assertion
recogmtion
a substantial
raises
that such
situation
voluntary
possibility
and under-
is not
that the
supra,
standing.
440
Roundtree,
Commonwealth
See
reflects a
A. 2d
711. The rule also
Pa. at
permit
person
an
innocent
wholesome reluctance
proper
for the
seal his own
administration
doom,
requires
justice certainly
a concern for criminal
acquittal as well as the
the innocent
conviction
indisputable
guilty.
It would seem
that these same
applicable
equally
guilty plea coupled
are
to “a
concerns
solely
responsibility”.
with a flat denial
Thus,
Project Mínimum
on
American Bar Association
Stan-
for
Justice has
dards
Criminal
concluded: “On upon
if the defendant is called
hand,
to make a
and he demes
statement
commission
the offense,
notwithstanding the existence of other
then,
informa-
verify
accuracy
tending
plea,
tion
it would
judge
inappropriate
judgment
for the
to enter
on
Relating
plea.”
Guilty
Standards
Pleas of
§1.6,
(Approved
1968).
Commentary
Draft,
way sup-
majority’s
distinction
Nor is
majority
The
ported
prior
of this Court.
decisions
opinion
Cottrell, 433
Commonwealth
cites
explicitly and
(1969), but
decision
A. 2d
position.
majority’s present
rejects
unequivocally
*10
Writing
Mr. Justice
Cottrell,
unanimous Court
for a
of
time
accused at the
stated:
“[W]here
Eagen
arraignment
he does
not
or asserts that
know,
does
plea
a
crime,
not
he has committed
know, whether
accepted
great
guilty
of
with
to
crime should be
that
just
as the one
situation,
caution.
such a
However,
equated
not to
a
where
is
be
with
situation
described,
guilt
accused
one
but
admits his
breath,
proclaims
clearly
next
his innocence.
latter
loould
The
plea upon
judg-
not be a
to
which
enter a
sufficient
(emphasis
ment” Id. at
The reliance North Al Carolina v. (1970), equally ford, 400 91 S. U.S. Ct. 160 is mis placed. Supreme In Alford, the United States Court a held that state trial court no commits consti federal accepts guilty tutional plea error when it a accom panied by protestation a of innocence when there is strong evidence of guilt. the defendant’s actual prior our Had reluctantly decisions in this area been compulsion arrived under analogous of United Supreme States Court decisions, the decision Alford might appropriate signal be an indeed for reexamina prior tion and of our reevaluation case law. That, how ever, was not the case. Cottrell and Roundtree were salutary equally when decided and are salutary today. they may longer no constitutionally That compelled why is no reason summarily this Court should disavow them.
In I believe that sum, should not be coupled accepted (a) if either with the assertion of (b) exculpatory proclamation facts or with a of inno- cence. Evidence
II. Character
ex-
the conclusion
I
concur with
likewise
from
character
of
good
appellant’s
clusion
evidence
error,
not reversible
guilt hearing
the degree
failed
that appellant
I
on the
solely
ground
do so
but
of such
receipt
deferral
to the court’s
object
of the degree
guilt.
until after the fixing
evidence
in a mur-
been
law that a defendant
It has
long
char-
of his own good
trial
introduce evidence
may
der
trier of fact
convince the
attempt
acter in order
Commonwealth,
Aston,
innocence. See, e.g.,
of his
on
Evi-
Wigmore
75 Atl.
(1910);
rule of admissi-
This same
1940).
dence
Ed.
(3d
hear-
at a degree
guilt
should likewise
bility
prevail
ing following
generally.
Commonwealth there
no such
thing
is
as
*11
If
murder.
degree
prosecution
first
to obtain such a conviction
following
desires
to a
it
all of
must
charge
murder,
prove
the elements
first
a reason
degree
beyond
able
Commonwealth
doubt.
ex rel. Andrews
See, e.g.,
Russell, 420 Pa.
215 A. 2d
4, 6,
857,
Com
(1966);
monwealth v.
Kurus,
92 A. 2d
633, 637,
196,
Commonwealth
Pa.
(1952);
Chapman, 359
164,
A. 2d 433
Commonwealth
(1948);
v. Iacobino, 319
Despite above, case removes normally a felon-murder I no can find basis for this issue participation.” only murder, assertion. Appellant pleaded guilty and in did admit so he not pleading participation or or to raise robbery felony forego right any defense to degree murder. first
Mr. joins Justice O’Brien this concurring opin- ion. Company Borough
Beaver Gasoline v. Osborne Appellants. et al., *12 September Argued Before Jones, Eagen, 1971. and Pomeroy, JJ. Roberts O’Brien,