Opinion
May 28, 1969.
Criminal Law — Practice — Plea of guilty — Voluntariness and intelligence — Post-conviction hearing — Finding of trial judge — Effectiveness of counsel — Judge on original sentencing panel presiding at post-conviction hearing — Pa. R. Crim. P. 1502(a).
1. In a post-conviction proceeding, in which it appeared that petitioner alleged, as to his guilty plea, that he was under the influence of drugs, that he was coerced into giving the confession (which presumably induced his plea), and that he was promised a shorter sentence if he pleaded guilty (which shorter sentence was not forthcoming), it was Held that the evidence sustained the conclusion of the hearing judge that the plea was knowingly and voluntarily entered.
2. Petitioner's contention, that his counsel was ineffective because he had advised him to confess even though three other people were being held for the crime, was Held to be without merit, where it appeared that, under all the circumstances, it could hardly be said that counsel's decision to have defendant confess did not have some reasonable basis designed to effectuate his client's interest.
3. Under Pa. R. Crim. P. 1502(a), a judge who sat on the original sentencing panel may preside at the post-conviction hearing, unless it appears necessary in the interest of justice that the petition be assigned to another judge. [392-3]
Submitted April 21, 1969. Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 162, Jan. T., 1969, from order of Court of Oyer and Terminer of Philadelphia County, June T., 1967, No. 408, in case of Commonwealth v. Bernard Gilbert Orr. Order affirmed.
Petition for post-conviction relief. Before GUERIN, P. J.
Petition denied after hearing. Defendant appealed.
Bernard Gilbert Orr, appellant, in propria persona.
James D. Crawford and Fortunata Guidice, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Appellant pleaded guilty to a charge of murder generally in 1967, and was found guilty of murder in the second degree by a three judge panel. In 1968 a PCHA petition was filed alleging that appellant's confession was involuntary, that his guilty plea was unlawfully induced and that counsel was ineffective. A hearing was held before Judge GUERIN, one of the judges on the original sentencing panel; the petition was subsequently dismissed. This appeal is from that dismissal. In addition to reiterating the issues presented in the original petition, appellant also urges that the hearing should have been held before a judge other than one who heard his original plea.
First we shall address ourselves to appellant's allegations as to his guilty plea. Appellant points to the fact that he was under the influence of drugs, that he was coerced into giving the confession (which presumably induced his plea), and that he was promised a shorter sentence if he pleaded guilty (which shorter sentence was not forthcoming). However, the hearing judge concluded after a full hearing was held that "There is absolutely not one word of credible evidence in the record before me to support" the charges.
In fact, as to the allegation that he was promised a shorter sentence, the hearing judge noted "This is absolutely false, unbelievable and perjurious testimony, and if I were doing the right thing I think I would sit as a Committing Magistrate and hold him in bail on a charge of perjury." Nor is the appellant able to do more than reiterate his bald allegations in this attempt to secure relief before our Court. Under the circumstances it seems clear that the hearing court's conclusion must be affirmed. The on-the-record inquiry before the acceptance of the plea, plus the testimony of appellant's trial counsel at the PCHA hearing, convince us that the plea was knowingly and voluntarily entered.
Next we turn to appellant's allegation that his counsel was ineffective. To support this claim, appellant emphasizes that (1) his attorney advised him to confess even though three other people were being held for the crime and (2) that he was only able to confer with his attorney for forty-five minutes on two occasions prior to trial. However, choosing to have his client confess under the circumstances in this case cannot possibly be said to violate the standards for effectiveness of counsel which this Court established in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In light of appellant's agitated state, the fact that he had confessed the commission of the crime to his counsel, and that it was known that witnesses were available who could identify appellant, it could hardly be said that counsel's decision to have appellant confess did not have "some reasonable basis designed to effectuate his client's interests." Id. at 604, 235 A.2d at 352. As to the argument about the two occasions for consultation with counsel, this allegation is clearly refuted by trial attorney's testimony that he consulted with appellant at least five times before trial.
Finally we turn to appellant's argument that because Judge GUERIN sat on the original sentencing panel he should not have presided at his PCHA hearing. We find this contention to be wholly without merit. The Pennsylvania Rules of Criminal Procedure, Rule 1502(b), makes it quite clear that the procedure followed in this case was consistent with the proper procedure in the Commonwealth. The rule states "The Administrative Judge shall assign the petition to the judge who presided at the trial, if he is available. If the trial judge is unavailable or should it appear necessary in the interests of justice, the Administrative Judge shall assign it to another judge." Since appellant alleges no reasons why Judge GUERIN "in the interests of justice" should have been removed, we must conclude that the objection is not grounds for a new hearing. See Kaufman v. United States, 394 U.S. 217 (1969); McCarthy v. United States, 394 U.S. 459 (1969).
For the reasons outlined above, the dismissal of appellant's PCHA petition, after hearing, is affirmed.