Com. ex rel. Kerekes v. Maroney

Decision Date15 November 1966
Citation223 A.2d 699,423 Pa. 337
PartiesCOMMONWEALTH of Pennsylvania ex rel. Michael KEREKES, Appellant, v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pa.
CourtPennsylvania Supreme Court

Michael Kerekes, in pro. per.

Harold V. Fergus, Dist. Atty., Arnold W. Hirsch, 1st Asst. Dist Atty., Washington, for appellee.



ROBERTS Justice.

In December 1959, appellant was found near the body of his wife with a self-inflicted bullet wound in his left temple. Subsequently he was indicted for her murder and brought to trial. [1] Originally he pleaded not guilty, but shortly after the jury was sworn he requested, through his court appointed counsel permission to withdraw this plea and 'enter a plea of guilty to second degree murder.' After ascertaining that the Commonwealth would not introduce evidence to prove that appellant was actually guilty of murder in the first degree, the court accepted the changed plea. When the Commonwealth had completed its case, the defense rested. The court then found the appellant guilty and sentenced him to a term of imprisonment of ten to twenty years. No post trial motions were filed nor was an appeal taken.

Approximately five years later appellant filed a petition for a writ of habeas corpus in the Court of Common Pleas of Washington County attacking the validity of his plea. This appeal is from the denial, without a hearing, of that petition. We are of the view that the court below was correct and accordingly affirm its order.

One of the grounds alleged by appellant in support of his petition is that the trial court had no authority to accept a plea to 'second degree murder.' Because a defendant may not enter a guilty plea to murder in the first degree, the accepted practice in Pennsylvania if he desires to plead guilty, is for him to enter a guilty plea to murder generally. Commonwealth ex rel. Hobbs v. Russell, 420 Pa. 1, 2, 215 A.2d 858, 859 (1966); Commonwealth v. Jones, 355 Pa. 522, 525, 50 A.2d 317, 319 (1947); Commonwealth v. Iacobino, 319 Pa. 65, 67--68, 178 A. 823, 825 (1935). When properly made such a plea is sufficient of itself to sustain a conviction for murder in the second degree. Commonwealth ex rel. Davis v. Russell, 422 Pa. 223, 226, 220 A.2d 858, 859 (1966); Commonwealth v. Iacobino, supra. The burden is then on the Commonwealth to prove that the offense meets the requirements of murder in the first degree. Commonwealth ex rel. Andrews v. Russell, 420 Pa. 4, 6, 215 A.2d 857, 858 (1966); Commonwealth v. Chapman, 359 Pa. 164, 167, 58 A.2d 433, 434 (1948). Similarly if the defendant desires to reduce the crime to that of voluntary manslaughter, the burden is upon him to adduce evidence which will so mitigate the offense. Commonwealth v. Kirkland, 413 Pa. 48, 63, 195 A.2d 338, 345 (1963); Commonwealth v. Etzoola, 52 Luzerne L.R. 270 (1962); see Commonwealth v. Jordan, 407 Pa. 575, 588, 181 A.2d 310, 317 (1962); Commonwealth v. Carroll, 326 Pa. 135, 137, 191 A. 610, 611 (1937); Commonwealth wealth v. Drum, 58 Pa. 9 (1868). Once a court accepts a plea of guilty to murder generally, it has the sole responsibility for fixing the degree of guilt and the penalty from the testimony produced and is not bound by any prior understanding between the Commonwealth and the defendant. Commonwealth ex rel. Hobbs v. Russell, supra; Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963); Commonwealth ex rel. Dandy v. Banmiller, 397 Pa. 312, 315--316, 155 A.2d 197, 199 (1959). Although contrary to proper procedure, we fail to see any prejudicial error in the court's acceptance of defendant's specific plea to murder in the second degree, provided the plea was knowingly entered. Compare Commonwealth ex rel. Ward v. Russell, 419 Pa. 240, 241 n. 1, 213 A.2d 628, 629 n. 1 (1965); Commonwealth ex rel. Green v. Rundle, 413 Pa. 401, 404, 196 A.2d 861, 863 (1964); Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50 (1940).

Recently in Commonwealth ex rel. West v. Myers, 423 Pa. 1, 222 A.2d 918 (filed September 27, 1966) we had occasion to consider the vulnerability of a guilty plea to collateral attack. When voluntarily and knowingly made such a plea is conclusive and binding upon the defendant. However, because a guilty plea operates as a waiver of all constitutional, statutory, and judicially created safeguards ordinarily surrounding the adversary system, a habeas court in considering the voluntary nature of the plea can not adhere to the generally prevailing rule that knowledge of counsel may be imputed to a defendant. [2] Id. at 6, 222 A.2d 921; see Kercheval v. United States, 274 U.S. 220, 223--224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). Before dismissing a petition which alleges the invalidity of a guilty plea, the habeas court must assure itself, by examining the record or by holding a hearing, that the decision to so plead was, at the time it was given, the defendant's own voluntary and intelligent choice, not merely the choice of his counsel. [3] Commonwealth ex rel. West v. Myers, supra.

In support of his conclusion that his guilty plea was not knowingly made appellant asserts that at the time of the trial he was suffering from the effects of his self-inflicted wound, which prevented him from adequately assisting in his defense and from fully understanding the consequences of his plea. Moreover, he alleges that the decision to plead guilty was made by his counsel, who, by failing to present testimony tending to show that appellant's offense amounted to no more than voluntary manslaughter, did not provide competent representation. The Commonwealth denies these allegations and answers by asserting that appellant agreed not to attempt to reduce the crime to manslaughter in exchange for the Commonwealth's willingness to forego seeking a conviction for murder in the first degree. It is the Commonwealth's position that this strategy, which possibly saved appellant from the electric chair, is binding upon him and cannot be attacked at this late date. See Commonwealth ex rel. Adderley v. Myers, 418 Pa. 366, 368, 211 A.2d 481, 483 (1966); Commonwealth v. Kirkland, 413 Pa. 48, 54, 195 A.2d 338, 341 (1966); cf. Commonwealth ex rel. LaRue v. Rundle, 417 Pa. 383, 207 A.2d 829 (1965).

The task of the habeas court would frequently be less difficult if the record of the original proceedings contained a direct inquiry into the defendant's understanding of his action. Commonwealth ex rel. West v. Myers, supra, at 7, 222 A.,2d at 922; Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 85, 202 A.2d 299, 302 (1964), cert. denied, 379 U.S. 976, 85 S.Ct. 677, 13 L.Ed.2d 567 (1965); Commonwealth ex rel. Barnosky v. Maroney, 414 Pa. 161, 165, 199 A.2d 424, 426 (1964). Because no such inquiry was made in the instant case, the transcript of the trial proceedings itself does not disclose whether, at the time he entered his plea, appellant misapprehended the effect of the Commonwealth's decision not to seek to prove the elements of murder in the first degree upon his own desire to show mitigating circumstances. Nonetheless, our cases have not set forth a fixed procedure for determining the validity of a guilty plea; rather we have held that this is a factual issue which must be resolved on a case by case basis according to the defendant's actual understanding of his plea and his willingness to enter it. Commonwealth ex rel. West v. Myers, supra; Commonwealth ex rel. Hilberry v. Maroney, 417 Pa. 534, 207 A.2d 974 (1965); Commonwealth ex rel. Crosby v. Rundle, supra; Commonwealth ex rel. Barnosky v. Rundle, supra. Thus, in the instant case, despite the incompleteness of the court's inquiry, our review of the entire record, when considered in light of appellant's petition, satisfies us that the denial of a hearing was justified.

A habeas court must hold a hearing whenever, accepting as true all allegations of fact which are non-frivolous, specific, and not contradicted by the record, the petition states grounds for relief; however, these facts 'must be alleged with compelling particularity and definiteness'. Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 22 n. 28, 213 A.2d 613, 625 n. 28 (1965); see Commonwealth ex rel. Hilberry v. Maroney, 417 Pa. 534, 540, 207 A.2d 794, 797 (1965); Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 111, 194 A.2d 143, 144 (1963). The failure to allege any facts from which one can draw an inference that appellant had even a tenable manslaughter defense renders Brubaker v. Dickson, 310 F.2d 30 (9th Cir.1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963), upon which appellant relies heavily, inapplicable. Nor can we conclude in the face of the findings of a specially appointed commission that appellant understood the gravity of the offense and had the mental capacity to cooperate with his attorneys, that his counsel was incompetent in failing to challenge appellant's competency to stand trial. See Commonwealth ex rel. LaRue v. Rundle, 417 Pa. 383, 386--389, 207 A.2d 829, 831--33 (1965); Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 87, 202 A.2d 299, 303 (1964), cert. denied, 379 U.S. 976, 85 S.Ct. 677, 13 L.Ed.2d 567 (1965); cf. Commonwealth ex rel. Hilberry v. Maroney, 417 Pa. 534, 207 A.2d 794 (1965). Finally, in his petition before this Court, as well as in the court below, appellant concedes 'he probably did concent (sic) to making a deal with the state rather than risk going to the electric chair', thus indicating he was fully aware of the nature of the understanding between his counsel and the Commonwealth's representative.

Appellant's last mentioned argument, however, goes further, for he urges us to hold that any bargain made...

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