Accord Commonwealth v. Miller, 494 Pa. 229, 235, 431 A.2d 233, 236 (1981); Commonwealthv. Maute, 263 Pa. Super. 220, 225, 397 A.2d 826, 829 (1979); See Also Commonwealth v. Velez, 455 Pa. 434, 440 ftn. 2, 317 A.2d 252, 253 ftn. 2 (1974) (the same criteria apply whether the attack is through a collateral proceeding or on direct appeal). A PCHA petition is the incorrect procedure by which to challenge the validity of a guilty plea.
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 ground: (1) an involuntary pretrial confession; (2) a guilty plea primarily motivated by that confession, and (3) a showing that, under the circumstances, the advice given to the defendant by his lawyer that he plead guilty was incompetent. See also Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975); Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181 (1975); Commonwealth v. Williams, 456 Pa. 377, 321 A.2d 608 (1974); Commonwealth v. Velez, 455 Pa. 434, 317 A.2d 252 (1974); Commonwealth v. Tolbert, 450 Pa. 149, 299 A.2d 252 (1973); Commonwealth v. Hollenbaugh, 449 Pa. 6, 295 A.2d 78 (1972); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972). In the present case the P.C.H.A. court, following the evidentiary hearing, concluded that "[t]he defendant has failed utterly to establish any of these criteria."
In order to attack a guilty plea on this ground a defendant must allege and establish: (1) that the confession was, indeed, unlawfully obtained; (2) that the plea was primarily motivated by that confession; and (3) that his decision to plead guilty rather than to stand trial was made upon the incompetent advice of counsel. Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181 (1975) [filed February 26, 1975]; Commonwealth v. Williams, 456 Pa. 377, 321 A.2d 608 (1974); Commonwealth v. Velez, 455 Pa. 434, 317 A.2d 252 (1974); Commonwealth v. Tolbert, 450 Pa. 149, 299 A.2d 252 (1973); Commonwealth 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). A post-sentencing petition for leave to withdraw a guilty plea is properly granted if the court is satisfied that allowing the plea to stand would result in manifest injustice.
This is not so! Ever since Marsh I, we have studiously followed the three-pronged test from McMann v. Richardson, supra, in examining the validity of guilty pleas. Commonwealth v. Velez, 455 Pa. 434, 317 A.2d 252 (1974); Commonwealth v. Butler, 454 Pa. 95, 309 A.2d 720 (filed October 3, 1973, the same day that the Wayman opinion was filed); Commonwealth v. Dennis, 451 Pa. 340, 304 A.2d 111 (1973); Commonwealth v. Tolbert, 450 Pa. 149, 299 A.2d 252 (1973); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Reagen, 447 Pa. 186, 290 A.2d 241 (1972). In Wayman, the appellant directly appealed his entry of guilty pleas to several charges of burglary.
CONCURRING OPINION BY MR. JUSTICE ROBERTS: I concur in the result for the reasons set forth in my concurring opinion in Commonwealth v. Velez, 455 Pa. 434, 437, 317 A.2d 252, 253 (1974) (ROBERTS, J., concurring, joined by NIX, J.). As in Velez, appellant's pleas were not the product of an allegedly illegal pretrial confession.
Our review of the record convinces us appellant's will was not overborne and that he possessed the ability to understand what he was doing when he confessed. See Commonwealth v. Melton, 465 Pa. 529, 351 A.2d 221 (1976); Commonwealth v. Velez, 455 Pa. 434, 317 A.2d 252 (1974). Appellant also avers that his counsel coerced him into pleading guilty by assuring him that he (appellant) would receive a maximum sentence on each count were he to plead not guilty.
Commonwealth v. Marsh, 440 Pa. 590, 593, 271 A.2d 481, 483 (1970). See also Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Commonwealth v.Marsh, 460 Pa. 253, 333 A.2d 181 (1975); Commonwealth v. Velez, 455 Pa. 434, 317 A.2d 252 (1974); Commonwealth v. Tolbert, 450 Pa. 149, 299 A.2d 252 (1973); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Reagen, 447 Pa. 186, 290 A.2d 241 (1972); Commonwealth v. Moroz, 444 Pa. 493, 281 A.2d 842 (1971); and Commonwealth v. Brown, 443 Pa. 22, 275 A.2d 332 (1970). Accordingly, we must now look to the evidence which appellant contends was obtained in violation of his constitutional rights and which, he claims, motivated his guilty plea.