Com. v. Dickerson

• Decision Date: 04 October 1972
• Citation: 295 A.2d 282,449 Pa. 70
• Parties: COMMONWEALTH of Pennsylvania v. Pecola DICKERSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 282

295 A.2d 282

449 Pa. 70

COMMONWEALTH of Pennsylvania v. Pecola DICKERSON, Appellant.

Supreme Court of Pennsylvania.

Oct. 4, 1972.

[449 Pa. 71] Neil Leibman (Submitted), Philadelphia, for appellant.

Arlen Specter, Dist. Atty. (Submitted), Richard A. Sprague, 1st Asst. Dist. Atty.,

James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Chief, Appeals Div., Peter J. Smith, Asst. Dist. Atty., Philadelphia, for appellee.

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

OPINION

EAGEN, Justice.

On September 18, 1970, the appellant, Pecola Dickerson, entered a general plea of guilty to an indictment charging her with the murder of one Granville Sawyer. ¹ As part of a plea bargain the Commonwealth had certified that the charge rose no higher than second degree murder. After the taking of testimony, appellant was adjudged guilty of murder in the second degree and was sentenced to a term of imprisonment of not less than three nor more than ten years. No appeal was taken.

In March of 1971 appellant filed a Post-Conviction Hearing Act petition, contending, inter alia, that her guilty plea was invalid because it was induced by a promise of a specific sentence which was not kept. ² After an evidentiary hearing, the lower court denied relief and this appeal was then taken.

A summary of the facts of this case, as related by the assistant district attorney at the time the plea was entered, is as follows: On July 11, 1969, appellant and two other persons (Carolyn Carrecter and Irvin Moore) were cruising the streets of Philadelphia in an automobile looking for narcotics. After a time they proceeded to the residence of Granville Sawyer to steal money to obtain the drugs. Shortly after appellant and Moore entered these premises, a shot was hear. Neighbors then saw Sawyer come to the door of his home holding his stomach and saying, 'the man shot me in the belly.' Appellant later surrendered to police and made a statement acknowledging her participation in the crime. The statement to police and appellant's testimony at Irvin Moore's trial were that she was upstairs looking for objects to steal when a commotion started, punctuated by a gun shot. As Sawyer staggered toward the front door, Moore and appellant ran out the back entrance.

Appellant attempted to have her confession suppressed contending that she was under the influence of drugs at the time it was given. A pretrial hearing was conducted before Judge Weinrott and the motion was denied.

The post-conviction hearing was held before Judge Doty on June 10, 1971. At that time appellant testified that her guilty plea was motivated by a promise of an eleven and one-half to twenty-three month sentence made by the Assistant District Attorney William Stevens. She also alleged that her attorneys showed a decided lack of interest in the case, never explaining why she was charged with murder nor why she should plead guilty.

Mr. Baran, a member of the bar with extensive experience in the trial of criminal cases, testified at this hearing that he and his co-counsel had discussed with appellant the question of entering a guilty plea and the various alternatives prior to the time of trial. He refuted the charges of disinterest by noting that together with his colleague he had met with Mrs. Dickerson on at least six occasions to discuss the case and prepare for trial. He stated he had no knowledge of any promise of an eleven and one-half to twenty-three month sentence and asserted that the only promise made was the second degree certification together with a Recommendation of a two to five year sentence, adding that this promise was kept. ³ The assistant district attorney denied that he made any promises other than those related by Mr. Baran.

Obviously, these allegations raised a question of credibility and the PCHA hearing judge chose to believe (as was his discretionary right) the testimony given by counsel. See Commonwealth v. Holl, 434 Pa. 312, 254 A.2d 11 (1969).

The question raised by this appeal, as framed by counsel for appellant, is whether a promise made by a district attorney to make a recommendation for a specific lenient sentence, when not followed by the sentencing judge, allows the defendant the privilege of withdrawing the guilty plea. If the query is answered in the affirmative, it is argued, then it follows of necessity that the failure of counsel to inform the defendant of this option is per se inadequate representation. It is further asserted that our Court decided this question in the affirmative in the case of Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969), and hence, that decision is controlling here.

Evans is not this case. In Evans the sole issue was whether it was proper for the trial judge to Participate in the plea bargaining. This Court said such a procedure was not consistent with due process and that a plea entered on the basis of a sentencing agreement in which the judge participates cannot be considered voluntary.

Appellant relies heavily on language found in a footnote to the Evans case wherein we adopted Section 3.3(b) of the A.B.A. Minimum Standards, Pleas of Guilty (Approved Draft 1968). This section reads in pertinent part:

"If a tentative plea agreement has been reached which contemplates the entrance of a plea of guilty or nolo contendere in the expectation that other charges before the court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition . . .."

Citing the commentary to the section, Mr. Justice Roberts, speaking for the Court, went on to explain in this footnote:

"This (plea) procedure . . . does not contemplate participation by the judge in the plea discussions. The judge Only becomes involved After the parties have reached agreement, and thus there would appear to be little basis upon which the...