Com. v. Dennis

• Decision Date: 04 May 1973
• Citation: 304 A.2d 111,451 Pa. 340
• Parties: COMMONWEALTH of Pennsylvania v. George DENNIS, Appellant.
• Court: Pennsylvania Supreme Court

Page 111

304 A.2d 111

451 Pa. 340

COMMONWEALTH of Pennsylvania v. George DENNIS, Appellant.

Supreme Court of Pennsylvania.

May 4, 1973.

[451 Pa. 341] Samuel Kagle, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, Mary Rose Cunningham, James T. Ranney, Asst. Dist. Attys., Assistant Chief, Appeals Div., Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

On May 12, 1969, the appellant, George Dennis, represented by counsel, entered a plea of guilty to murder generally. Following a degree-of-guilt hearing at which the District Attorney certified to the court that the crime rose no higher than murder in the second degree, appellant was found guilty of that crime by the trial court and sentenced to a term of not less than six nor more than twenty years' imprisonment. No appeal was taken. On September 22, 1970, appellant filed a petition under the Post Conviction Hearing Act ¹ (PCHA) alleging (1) that he was denied his appellate rights,(2) that the evidence introduced at the degree-of-guilt hearing was insufficient to raise the crime above voluntary manslaughter, (3) that his guilty plea was not knowingly or intelligently entered because it was based upon an involuntary confession and dereliction of counsel, and (4) that his trial counsel was incompetent. This is an appeal from the lower court's denial of relief following a hearing at which appellant was represented by appointed counsel.

Appellant's initial allegation that he was denied his appellate rights is not well founded. Although the information given appellant concerning his appellate rights was inadequate, ² he was not prejudiced by any denial of the right to appeal. It is well-established that on direct appeal from a second-degree murder conviction based on a guilty plea, a defendant can only attack the voluntariness of the plea, the validity of the sentence and the related question of whether he introduced evidence sufficient to reduce the killing to manslaughter. Since these issues can also be raised in a collateral attack a denial of a defendant's right to appeal is non-prejudicial where, as in this case, the defendant is afforded an opportunity for review in a collateral proceeding. Commonwealth v. Minnick, 436 Pa. 42, 46, 258 A.2d 515, 517 (1969); Commonwealth v. Culpeper, 434 Pa. 15, 18--19, 252 A.2d 624, 626 (1968); Commonwealth v. Walters, 431 Pa. 74, 76, 244 A.2d 757, 759 (1968).

Equally lacking in merit is the appellant's contention that the evidence was insufficient to raise the crime above voluntary manslaughter. When an accused pleads guilty to murder generally, he admits that he is guilty of second-degree murder and that there is sufficient evidence to sustain a conviction for second-degree murder. Commonwealth v. Dillinger, 440 Pa. 336, 269 A.2d 505 (1970). Even though an accused enters a plea of guilty to murder generally, he is still given an opportunity to introduce evidence that will mitigate the offense to voluntary manslaughter. Com. ex rel. Kerekas v. Maroney, 423 Pa. 337, 340, 223 A.2d 699, 701 (1966). In Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968), this court held that whether the trial judge erred in failing to reduce the crime to voluntary manslaughter is a question cognizable in a collateral proceeding because it is an attack on the validity of the plea and not a question of the sufficiency of the evidence. Having carefully reviewed the record, we conclude that the Commonwealth's testimony more than adequately supported a second-degree murder conviction. Three eyewitnesses saw appellant holding the gun on the victim while the victim had his hands up, saw appellant advance and fire at the victim and saw appellant fire again as the victim fled.

In attacking his guilty plea as based on an unconstitutional confession, appellant must demonstrate all of the following: (1) that the confession was unconstitutionally obtained; (2) that the confession was the primary motivation for the guilty plea; and (3) that the entry of the guilty plea was on incompetent advice of counsel. Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972). Initially we note that appellant's confession was made knowingly and freely. He was advised of his constitutional rights as prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when he was arrested, advised again when taken into the police station and advised a third time before he made his formal statement. Although the Miranda warnings had not been given immediately before his prior oral admission, this would not invalidate his subsequent formal statement. In Commonwealth v. Abrams, 443 Pa. 295, 299, 278 A.2d 902, 905 (1971), this Court held that the prosecution has no absolute duty to repeat the Miranda warnings at each successive stage of an interrogation. Here, the appellant was repeatedly informed of his constitutional rights and freely and intelligently chose to waive those rights. Even assuming that appellant's confession was constitutionally infirm, we do not conclude that his guilty plea was primarily motivated by his confession. It seems appellant pleaded guilty in order to avoid facing the eyewitness testimony which might have sufficed to convict appellant of first-degree murder. Further, from a review of the record colloquy between appellant and the trial court, we are convinced that appellant knowingly, intelligently and voluntarily pleaded guilty.

We are also unable to find that appellant's guilty plea was based on the incompetent advice of counsel. The test for the competency of counsel's advice does not involve a retrospective consideration of whether the advice was right or wrong but rather whether the advice was within the range of competence normally required of criminal defense attorneys. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Our concern, therefore, is with the reasonableness of counsel's assessment of his client's case and his subsequent advice, including advice as to the effect of entering a guilty plea. Commonwealth v. Ward, 442 Pa. 351, 354, 275 A.2d 92, 94 (1971). Considering the circumstances surrounding the confession, the denial of a motion to suppress the confession and the eyewitness testimony that could establish a deliberate killing, we conclude that defense counsel had a reasonable basis for advising his client to plead guilty.

Appellant makes a number of claims to support his final allegation that his trial counsel was incompetent. The only claim...