Commonwealth v. Thomas

¶1Opinion by

¶2This is an appeal from an order entered in the court below dismissing an action seeking post-conviction relief.

¶3The record discloses the following:

¶4On March 29, 1954, Robert Blocker was shot and killed during a street “gang” fight in Philadelphia. The appellant, Hezekiah Thomas,1 was one of several youths taken into police custody in connection with the homicide. He was fourteen years of age at the time. Subsequently, Thomas was taken before Judge Peoppee sitting in the Juvenile Court Division of the Municipal Court (later designated the County Court), who, acting as a committing magistrate, ordered Thomas held without bail to await action by the grand jury.2 Thomas did not have legal counsel during the proceedings.

¶5*215Thomas was subsequently indicted for murder in the Court of Oyer and Terminer and General Jail Delivery of Philadelphia County. Two lawyers were appointed by the court to represent him.

¶6On November 3, 1954, Thomas appeared with his counsel before Judge Griffiths in the Court of Oyer and Terminer and entered a general plea of guilty to the murder indictment. Testimony was heard, following which Thomas was adjudged guilty of murder in the second degree and sentenced to imprisonment for a term of 7 to 18 years. No appeal was entered.

¶7In May 1967, Thomas initiated the present post-conviction relief proceedings under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. §1180-1 et seq. (Supp. 1970), challenging the validity of his 1954 conviction based on his guilty plea. Counsel was appointed to represent him. After an evidentiary hearing, relief was denied. This appeal then followed.

¶8First, it is asserted that the lower court erred in not invalidating the guilty plea because it “was primarily motivated by an involuntary confession” given to police by Thomas after his arrest, and hence “was not a voluntary plea.”

¶9In order to successfully collaterally attack a plea of guilty on such grounds, the defendant must demonstrate: (1) that the pretrial confession was involuntary; (2) that the guilty plea was primarily motivated by such confession; and (3) that he was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441 (1970).

¶10*216In a collateral proceeding such, as this, the burden of persuasion rests with the defendant to establish that the confession of which he complains was coerced or involuntarily made. United States ex rel. Grays v. Rundle, 428 F. 2d 1401 (1970) ; and Commonwealth v. McBride, 440 Pa. 81, 269 A. 2d 737 (1970).

¶11At the “PCHA” hearing, Thomas testified that following his arrest he was held incommunicado by the police for several days; that during this period he was questioned by teams of detectives for several hours and assaulted by one of his interrogators, as well as by a relative of the deceased, Blocker; that the assault by the police officer consisted of a severe blow to the left eye, which cut the skin and caused bleeding for days; and that the confession was given and signed immediately following this assault, while he was in a state of intimidation and fear.

¶12In contradiction, one of his trial counsel testified that he saw Thomas “soon” after the confession was given, and there was no visible sign of the injury of which Thomas now relates. He also stated that he saw and talked with Thomas on several occasions prior to trial, and in no instance did Thomas complain of his treatment by the police or even hint that the confession was coerced or involuntary. This testimony was corroborated by copious notes which counsel made during these conferences, and Thomas never disputed this testimony of counsel. In addition, during the plea proceedings, which occurred several months subsequent to the date the confession was given, Thomas personally testified and said nothing about the coercion of which he now complains. Also, this testimony was substantially consistent with the contents of the confession.

¶13Under the foregoing circumstances, the lower court did not err in concluding that Thomas’ present assertions that the confession was coerced were not credible, *217and that Thomas’ confession was voluntarily given. Consequently, since the involuntariness of the confession is a prerequisite for relief on the grounds here asserted, the lower court correctly rejected this challenge to Thomas’ guilty plea.

¶14The validity of the plea conviction is also challenged because Thomas was not represented by legal counsel at the preliminary commitment hearing conducted before Judge Propper. See Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). As to this, our ruling in Commonwealth v. James, 440 Pa. 205, 269 A. 2d 898 (1970) controls.