Com. v. Marsh

Decision Date09 October 1970
Citation440 Pa. 590,271 A.2d 481
PartiesCOMMONWEALTH of Pennsylvania v. Vernon C. MARSH, Appellant.
CourtPennsylvania Supreme Court

James D. McDonald, Jr., Quinn, Plate, Gent, Buseck & Leemhuis, Erie, for appellant.

William E. Pfadt, Dist. Atty., Robert B. McCullough, Asst. Dist. Atty., Erie, for appellee.



EAGEN, Justice.

On November 15, 1966, the appellant, Vernon C. Marsh, in the presence of self-retained counsel, entered a general plea of guilty to an indictment charging him with the murder of Bruno C. Roehrl. After a hearing before a three-judge court, he was adjudged guilty of murder in the first degree, and sentenced to imprisonment for life. No appeal from the judgment was then filed.

In November 1967, Marsh instituted proceedings seeking post conviction relief. After an evidentiary hearing, the court concluded that Marsh had been denied his constitutional right to the assistance of counsel in the filing and prosecution of an appeal as mandated by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and granted him permission to file motions for a new trial and in arrest of judgment as if timely filed. Such motions were then filed, and subsequently dismissed. This appeal followed.

The basic contention is that the plea of guilty should be invalidated because it was primarily induced or motivated by the existence of incriminating evidence obtained by the police through means which violated Marsh's constitutional rights. This evidence consisted of an oral and a written statement given by Marsh to the police, allegedly under coercive circumstances and in the absence of the complete warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) as well as a gun and bullets allegedly seized in an unlawful search.

Whether or not a guilty plea should be invalidated on this ground was the central question for decision in the recent cases of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), wherein the defendants sought relief in the federal courts from convictions resulting from guilty pleas entered in state courts. The United States Supreme Court there held that a defendant must demonstrate All of the following to successfully collaterally attack a plea of guilty on such grounds: (1) an involuntary pretrial confession (or presumably any other constitutionally infirm incriminating evidence); (2) that the guilty plea was primarily motivated by such evidence; and, (3) that defendant was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial. In fact, the Court ruled that a defendant is not even entitled to a hearing in the federal courts on the mere allegation that his otherwise valid guilty plea was primarily motivated by an involuntary pretrial confession. And this is so even in those instances where there is an absence of proof other than the evidence of questionable evidentiary use.

As the Court pointed out, conviction after a plea of guilty is based not on the evidence in the hands of the prosecution, which may include a pretrial confession, but rather upon the defendant's own admission in open court that he committed the crime. The key question is whether the defendant had the opportunity to make a reasonable choice. The existence of an involuntary confession does not, in itself, demonstrate that the defendant did not make a reasonable choice, and thus it cannot establish, in itself, that the plea was not intelligently and knowingly entered.

In speaking of what constitutes incompetent advice by counsel, the Court in McMann, supra, stated that the showing of a mere miscalculation of otherwise competent counsel in assessing the admissibility of evidence by means which may not have conformed with constitutionally-required standards is not sufficient to establish that the plea was not intelligently and knowingly entered. There must be a showing of gross error on the part of counsel. As long as the advice rendered was within the ambit of that which could reasonably be given by counsel in a criminal case in the circumstances, there is no showing of 'incompetent' counsel.

We recognize that we could fix more exacting standards than those enunciated in McMann, supra, and Parker, supra, for our courts to follow in determining the validity of conviction resulting from guilty pleas, And some of our previous decisions may have been so interpreted, but we intend to adhere to the rulings in McMann, supra, and Parker, supra.

With the foregoing in mind, we now turn to the instant case.

Marsh contends that there was incriminating evidence in the hands of the prosecution secured by the police under circumstances not meeting constitutional standards; that the court erroneously refused a motion to suppress this evidence; and that its existence was the primary motivation for his guilty plea. He does not maintain nor does the record demonstrate that his counsel's advice to plead guilty was incompetent. Hence his attack on the validity of the plea must fail, and the lower court correctly rejected this challenge.

Nevertheless, in pleading guilty generally to a murder indictment, a defendant does not thereby waive his right to object to the admission of improper evidence which will bear on the degree of guilt and the punishment to be imposed. Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967), and Commonwealth ex rel. Sanders v. Maroney, 417 Pa. 380, 207 A.2d 789 (1965). Since a general plea to murder is sufficient, in itself, to sustain only a conviction of murder in the second degree and the adjudication of guilt in this case was of a higher degree, the question of the admissibility of the evidence as issue must be resolved.

In this connection, the record discloses the following: On February 10, 1965, Bruno C. Roehrl was shot and killed in Harborcreek Township, Erie County. On February 16th, Marsh was taken into custody and held for several hours by officers of the Pennsylvania State Police and questioned about the killing. He was also given a lie detector test. Admittedly, no warnings of any constitutional rights were given to Marsh before or during the questioning, but nothing of an incriminating nature resulted, and Marsh was released from custody without any charges being preferred.

On February 23, 1966, Marsh was again taken into custody and questioned about the killing by a Detective Sergeant of the Pennsylvania State Police. During this questioning, Marsh made an oral and a written incriminating statement. As indicated before, a timely motion to suppress this evidence was refused, and it was admitted, over objection, during the proceedings to determine the degree of guilt.

At the suppression hearing, there was ample testimony to support a finding that before the questioning of February 23, 1966, commenced, Marsh was given warnings of constitutional rights purporting to conform with those required by Miranda, supra. However, it is argued that those warnings were incomplete, specifically, that Marsh was not told of his right to the assistance of 'free counsel' during the questioning, if he were indigent. If this contention be correct, since the plea was entered subsequent to the effective date of Miranda, supra, evidence of the incriminating statements would not properly be admissible during the plea proceedings. For, to effectively waive his right to counsel at the pertinent time, it must clearly appear that Marsh...

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21 cases
  • Commonwealth v. Wayman
    • United States
    • Pennsylvania Supreme Court
    • October 3, 1973
    ...causally related to the presence in the hands of the prosecutor of illegally obtained evidence? We answered this question in Commonwealth v. Marsh, supra, in which we the federal standards announced in the so-called 'Brady trilogy' of the United States Supreme Court cases. [8] We said in Ma......
  • Commonwealth v. Melton
    • United States
    • Pennsylvania Supreme Court
    • January 29, 1976
    ... ... the existence of a confession which had been obtained from ... him illegally. In Commonwealth v. Marsh, 440 Pa ... 590, 271 A.2d 481 (1970), we adopted a tripartite test for ... determining when a guilty plea could be invalidated on that ... ...
  • Com. v. Zakrzewski
    • United States
    • Pennsylvania Supreme Court
    • March 18, 1975
    ...v. Hollenbaugh, 449 Pa. 6, 295 A.2d 786 (1972); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970). In the case at bar appellant has made no claim, much less demonstrated, that his trial counsel was ineffective. 3 Indeed, a care......
  • Com. v. Dobrolenski
    • United States
    • Pennsylvania Supreme Court
    • March 18, 1975 evidence at the hearing on the degree of guilt, it remains necessary to determine their admissability. Commonwealth v. Marsh, 440 Pa. 590, 594, 271 A.2d 481, 483--84 (1970). Thus the claim of error at the suppression hearing, having been properly preserved at all stages of the proceeding......
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