Com. v. Nelson

• Decision Date: 08 May 1990
• Citation: 574 A.2d 1107,393 Pa.Super. 611
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Carl Vernon NELSON, Carl Vernon Nelson, Carl V. Nelson, Carl Vernon Nelson.
• Court: Pennsylvania Superior Court

Page 1107

574 A.2d 1107

393 Pa.Super. 611

COMMONWEALTH of Pennsylvania, Appellant, v. Carl Vernon NELSON, Carl Vernon Nelson, Carl V. Nelson, Carl Vernon Nelson.

Superior Court of Pennsylvania.

Submitted Oct. 10, 1989.

Filed May 8, 1990.

Rene Heilman, Asst. Dist. Atty., Warren, for Com., appellant.

Kenneth L. Crosby, Warren, for appellee.

Before OLSZEWSKI, KELLY and JOHNSON, JJ.

OPINION BY OLSZEWSKI, Judge:

This is an appeal by the Commonwealth from an order granting appellee relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. ("PCRA"). ¹ Appellee, Carl Vernon Nelson, filed a pro se petition for post-conviction relief on September 9, 1988, which was supplemented by an amended petition filed by counsel on December 6, 1988. Appellee's amended petition alleged, inter alia, violation of appellee's rights under the United States Constitution and the Pennsylvania Constitution, ineffective assistance of counsel, and a plea of guilty unlawfully induced. ²

The undisputed facts, as summarized by the PCRA judge, are as follows:

On August 25, 1977, Defendant was arrested for the slaying of Jess Perry and his attempt to kill Perry's daughter. As a result of plea negotiations on charges of homicide, Defendant entered a guilty plea to third degree murder and attempted murder, and in doing so [inculpated] Thomas Eaton and gave sworn statements Eaton had solicited Defendant to murder the victim, giving him the murder weapon and ammunition to do so. As a result Eaton was charged with solicitation of murder and violation of the Uniform Firearms Act. Eaton was granted a change of venue to Mercer County on those charges, and Defendant was subpoenaed from his imprisonment to the trial by the District Attorney as a Commonwealth witness. Prior to Defendant's perjured testimony, ³ he had recanted his accusations against Eaton to Eaton's counsel which was also known by the District Attorney of Warren County, and this possible recantation at the Eaton trial was made known to the trial Judge with a request the Court call Defendant as a court witness in the Eaton trial. Without counsel, Defendant was compelled by the Court to testify [on October 11, 1978] and consummated his perjury, notwithstanding Defendant's attempt to plead the Fifth Amendment, which was denied by the Court. As a result of the recantation, Defendant was charged in Warren County with the aforesaid perjury and false statements. Court-appointed counsel was assigned to Defendant on these charges, and again Defendant entered a plea of guilty ⁴ before the Warren [County] Court with his counsel advising the Court there was no viable defense.

On December 7, 1988, after argument on Defendant's petition, [the P.C.R.A. court] granted Defendant leave to withdraw his guilty plea to the perjury and false statement charges, however, conditioned the withdrawal granting leave to the Commonwealth to supplement the records of both Warren and Mercer County courts that would show any evidence that would reasonably require a different disposition. At the Commonwealth's request [the court] held an evidentiary hearing with Defendant present and represented by court-appointed counsel. At this hearing [the court] gave the Commonwealth wide latitude to show any evidence Defendant was not entitled to the relief sought.

P.C.R.A. court opinion at 4-5. On March 3, 1989, the PCRA court issued an order granting appellee leave to withdraw his guilty pleas to perjury and false swearing. From this order the Commonwealth appeals. Because the PCRA court properly determined that appellee was entitled to relief, we affirm its decision.

The Commonwealth's sole issue in this appeal is, "Whether appellee's testimony exculpating Eaton at Eaton's trial was compelled, where appellee, aware of his fifth amendment rights, freely and voluntarily testified on direct examination, and subsequently claimed the fifth amendment on cross-examination?" This argument relates only to whether the requirements of 42 Pa.C.S.A. § 9543(a)(2) were met by appellee. ⁵

I.

In reviewing an order granting a PCRA petition, we follow the same standard applicable under the former Post Conviction Hearing Act ("PCHA"). ⁶ We look to whether the PCRA court's determination is supported by evidence of record, and is otherwise free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982).

II.

In order to set aside a plea of guilty under the former PCHA, a defendant was required to demonstrate three things: first, the existence of constitutionally infirm incriminating evidence; second, that the guilty plea was primarily motivated by the existence of such evidence; and third, that the defendant was incompetently advised by counsel to plead guilty rather than stand trial. Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970) ("Marsh I "). Accord Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181 (1975) ("Marsh II "); Commonwealth v. Miller, 494 Pa. 229, 236-237, 431 A.2d 233, 236 (1981). The criteria stated in Marsh I apply both on direct appeal and in collateral proceedings. Commonwealth v. Swift, 299 Pa.Super. 77, 81 n. 2, 445 A.2d 156, 157 n. 2 (1982).

Like the former PCHA, the PCRA authorizes a grant of postconviction relief based on the violation of constitutional rights, ineffective assistance of counsel, or an unlawfully induced guilty plea. ⁷ The PCRA, however, has additional requirements which we read into the Marsh I test. The first factor of the Marsh I test requires the existence of constitutionally infirm incriminating evidence, while the PCRA adds the requirement that, "in the circumstances of the particular case, [the existence of the evidence] so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(i). The second factor of the Marsh I test requires that the guilty plea be "primarily motivated" by the infirm evidence, while the PCRA requires that the circumstances surrounding the guilty plea "make it likely that the [constitutionally infirm incriminating evidence] caused [the] individual to plead guilty." ⁸ The third factor of the Marsh I test requires that the defendant have been incompetently advised by counsel to plead guilty rather than stand trial, while the PCRA adds the requirement that counsel's incompetence "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S.A. § 9543(a)(2)(ii). We will proceed to analyze whether the PCRA court erred in finding that appellee had satisfied the dictates of the Marsh I test, as modified by 42 Pa.C.S.A. § 9543(a)(2).

III.

The first factor of the Marsh I test requires us to determine whether the testimony appellee gave at Thomas Eaton's trial on October 11, 1978 was constitutionally infirm. Appellee entered pleas of guilty to third-degree murder and attempted murder before he testified at the Mercer County trial of Thomas Eaton. At the time of Eaton's trial appellee was serving a prison sentence for murder and attempted murder, but had not yet pleaded guilty to perjury and false swearing. Indeed, it would have been impossible for him to have pleaded guilty because the perjury and false swearing charges were not filed until November 15, 1978, 35 days after appellee confessed at Eaton's trial.

It is undisputed that the district attorney, Eaton's attorney, and the trial court all knew before appellee was called to testify that appellee had recanted his prior testimony implicating Eaton. Furthermore, the parties took the unusual step of having appellee called as a witness for the court in order to allow both the prosecution and defense attorneys to cross-examine appellee. Appellee was transported from his prison cell to Mercer County and testified under subpoena. He was not represented by counsel and was not advised by the court, by the district attorney or by Eaton's defense attorney that he had any rights against incriminating himself concerning prior perjury or false swearing. It was not until after appellee had inextricably implicated himself that the district attorney even suggested to appellee the possible consequences of his testimony. When appellee attempted twice to assert his fifth amendment rights on his own he was rebuffed. The first time appellee asserted his rights, he was ignored. The second time he was told, by the trial judge: "[Y]ou have no right to plead the Fifth Amendment. You pled guilty to the crime which you were charged with and you have no right and we will instruct you to answer the question, please." Transcript of October 11, 1978, at 64.

A plea of guilty to a criminal charge is generally regarded as a waiver of the privilege against self-incrimination with respect to that charge. Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978). The rationale behind this rule is that once a person has been convicted of a particular crime, it is not possible to become any more incriminated with respect to that same crime. See Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). By pleading guilty to one charge, however, a defendant does not waive his privilege not to incriminate himself in other crimes. United States v. Yurasovich, 580 F.2d 1212 (3rd Cir.1978). Accord United States v. Zirpolo, 704 F.2d 23 (1st Cir.), cert. denied, 464 U.S. 822, 104 S.Ct. 87, 78 L.Ed.2d 96 (1983).

Specifically relating the law of self-incrimination to the crime of perjury, one federal court has stated:

a witness may not claim the [fifth amendment] privilege out of fear that he will be prosecuted for perjury for what he is about to say, although he may claim the privilege if his new testimony might suggest that he had perjured...