Com. v. Lovett

• Decision Date: 18 March 1971
• Citation: 275 A.2d 329,442 Pa. 105
• Parties: COMMONWEALTH of Pennsylvania v. Joseph LOVETT, Appellant.
• Court: Pennsylvania Supreme Court

Page 329

275 A.2d 329

442 Pa. 105

COMMONWEALTH of Pennsylvania v. Joseph LOVETT, Appellant.

Supreme Court of Pennsylvania.

March 18, 1971.

Peter B. Scuderi, Philadelphia, for appellant

Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., Edward G. Rendell, Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

In May of 1956, appellant, Joseph Lovett, was arrested and charged with the murder of Robert Heffin. At his trial on February 4, 1957, appellant pleaded guilty to murder generally, with a certification by the Commonwealth that the crime would rise no higher than murder in the second degree. Appellant was represented by two attorneys when he entered his guilty plea, but there was no on-the-record colloquy concerning the crime or the guilty plea or the voluntariness of the confession.

After hearing all the evidence, the trial Judge found the appellant guilty of murder in the second degree and sentenced him to not less than 7 1/2 nor more than 20 years in prison. No direct appeal, from the judgment or imposition of sentence was taken.

In March of 1969, appellant filed a petition under the Post Conviction Hearing Act asserting (1) a denial at trial of the right to appeal; (2) the admission at trial of a coerced confession; (3) ineffective assistance of counsel; (4) the trial Judge improperly permitted the guilty plea to stand after hearing the evidence; and (5) the Court erred in reviewing the appellant's juvenile record prior to adjudicating the degree of guilt. On September 3, 1969, the hearing Judge, after hearing the testimony, rejected the appellant's contentions and dismissed the petition. Defendant then appealed.

In this appeal, appellant presents two contentions. Appellant first contends, relying upon Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, that his guilty plea was not voluntarily, knowingly and intelligently made. While Boykin sets forth the requirement of an 'on-the-record examination' to establish that a guilty plea was voluntarily, knowingly and intelligently entered, we have held that this decision was not retroactive. Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923. Since appellant's trial took place in 1957 and the effective date of Boykin was June 2, 1969, the Boykin requirement of 'on-the-record examination' does not apply to the present case.

Although this is a silent-record case, the plea was entered long before our Rundle, 428 Pa. 102, 237 A.2d 196, and Rundle, 423 Pa. 102,237 A.2d 196, and therefore the burden of proving that the plea was not voluntarily, knowingly and intelligently made was on the appellant. Commonwealth v. McBride, 440 Pa. 81, 269 A.2d 737; Commonwealth v. Knowles, 440 Pa. 84, 269 A.2d 739; Commonwealth v. Enty, Pa., 271 A.2d 926 (filed January 7, 1971). A careful review of the record establishes that the appellant has failed to carry this burden. At the P.C.H.A. hearing, Mr. Minisi, one of appellant's able trial attorneys, testified that he had reviewed with the appellant all of the possibilities and consequences which could result from a guilty plea. The appellant's testimony was to the contrary. This raised a question of credibility and the P.C.H.A. hearing Judge exercised his discretionary right and chose to believe the testimony given by Mr. Minisi. Commonwealth v. Holl, 434 Pa. 312, 254 A.2d 11; Commonwealth v. Enty, supra.

Appellant's second contention is that he was denied effective assistance of counsel. Our Court set forth the guidelines for testing effectiveness of counsel in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349. In that case, we stated (pages 604--605, 235 A.2d pages...