449 PA 345 - Commonwealth v. Taylor

¶1Opinion by

Mr. Justice Pomeroy,

¶2On June 9,1965, appellant Myles Taylor, represented by court-appointed counsel, entered a plea of guilty to murder generally, the degree of guilt being subsequently fixed at murder in the second degree. Appellant made no post-trial motions and took no appeal.

¶3On October 22, 1969, appellant filed a PCHA1 petition, alleging numerous grounds for reversal of his conviction. At the hearing on the petition, these grounds narrowed to only two contentions: (1) that appellant’s guilty plea was on incompetent advice of counsel and was not knowing and intelligent, and (2) that it was induced by a confession unconstitutionally obtained by police interrogators at a time when appellant was unrepresented by counsel.2 The lower court *347denied post-conviction relief after holding the hearing required by §9 of the Act, and that denial is appealed to this Court. We affirm.

¶4At the time of his arrest and the police interrogation which followed it, Myles Taylor was 15 years old and unrepresented by counsel. It is his contention here that either as a matter of law or under the “totality of circumstances” test of Commonwealth v. Darden, 441 Pa. 41, 271 A. 2d 257 (1970), he could not be said to hare waived his right to counsel under Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977 (1964), and that therefore his confession was obtained through constitutionally impermissible means.3 Although this Court has in the past refused to erect a per se rule of incapacity to make such a waiver based solely on age, Commonwealth v. Darden, supra, Commonwealth v. Moses, 446 Pa. 350, 287 A. 2d 131 (1971), the question of waiver of such rights has been troublesome. See, *348e.g., Commonwealth v. Moses, supra, at 356 (Roberts, J., dissenting opinion). Appellant here, however, entered a guilty plea to murder generally on advice of his counsel. Because that guilty plea “is . . . [an] admission in open court that he committed the acts charged in the indictment,” appellant’s uncounselled confession will be unavailing to him unless he can, at the same time, avoid the counselled guilty plea. Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747 (1970); Commonwealth v. Stokes, 426 Pa. 265, 232 A. 2d 193 (1967).

¶5In Commonwealth v. Marsh, 440 Pa. 590, 271 A. 2d 481 (1970), we set out the concurrent requirements for attacking a guilty plea allegedly based on an unconstitutional confession. Appellant must demonstrate all of the following: (1) that the confession was unconstitutionally obtained; (2) that the confession was the primary motivation for the guilty plea; and (3) that the entry of the guilty plea was on incompetent advice of counsel. See also Commonwealth v. Moroz, 444 Pa. 493, 281 A. 2d 842 (1971); McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 25 L. Ed. 2d 785 (1970). In a case of this sort, therefore, our initial inquiry “is directed to the reasonableness of counsel’s assessment of his client’s case and his advice to the client in light thereof, including advice as to the implications and consequences of entering a guilty plea.” Commonwealth v. Ward, 442 Pa. 351, 354, 275 A. 2d 92 (1971). Here we find that appellant falls well short of showing that counsel’s advice as to pleading guilty was incompetent.

¶6Myles Taylor was represented at the time his plea was entered by two counsel appointed by the court in January, 1965. The record of the post-conviction hearing shows that they investigated the facts surrounding *349appellant’s arrest and filed a motion to suppress the confession for the reason that it was obtained by the police at a time when appellant was not represented by counsel. After a hearing on June 5, 1965 (extending through 165 pages of transcript), the court denied the motion to suppress, finding that Myles Taylor’s waiver of counsel was knowing and intelligent, notwithstanding the testimony to the contrary of a doctor of psychology who examined appellant at the request of his counsel. The motion to suppress unsuccessful, the two attorneys then discussed the possibility of a guilty plea with appellant and with his mother and grandfather, and subsequently recommended that course of action.

¶7Under our test for determining the effectiveness of counsel, it appears that the advice offered appellant with regard to his plea was not constitutionally deficient. Here the two court assigned counsel knew the relevant law regarding appellant’s uncounseled confession and they properly attempted to capitalize on that law by presenting at a suppression hearing testimony upon which pivotal facts going to the validity of the confession could be found. The suppression court, however, found those facts adversely to appellant. Faced with a confession in the prosecutor’s hands, the constitutionality of which had been upheld under first testing, counsels’ choice among the alternatives then available was a reasonable one. See Commonwealth v. Sampson, 445 Pa. 558, 285 A. 2d 480(1971); Commonwealth v. Allen, 443 Pa. 447, 277 A. 2d 818 (1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A. 2d 526 (1971) ; Commonwealth v. Smith, 442 Pa. 265, 275 A. 2d 98 (1971); Commonwealth v. Lovett, 442 Pa. 105, 275 A. 2d 329 (1971); Commonwealth v. Skipper, 440 Pa. 576, 271 A. 2d 476 (1970); Commonwealth v. Woody, 440 Pa. 569, 271 A. 2d 477 (1970); Commomwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 *350A. 2d 3á9 (1967).4 It follows that appellant’s counsel acted within the range of competence demanded of attorneys in criminal cases.5

¶8 *351Because one element of the Marshthree-element test is thus absent, it is not necessary to reach the further issues of whether the confession was unconstitutionally obtained and whether that confession primarily motivated the guilty pleas.

¶9The denial of appellant’s Post Conviction Hearing Act petition is therefore affirmed.

¶10 Post Conviction Hearing Act, Act of January 25, 1966, P. U. (1965) 1580, 19 P.S. §1180-1 et seq.

¶11 In his PCHA petition and at the hearing, appellant argued that his rights to a direct appeal had been denied by failure of his counsel to inform him of that right, and that he therefore *347should be entitled to an appeal nunc pro tunc. The argument fails for the reason that appellant was convicted of second degree murder on a plea of guilty to murder generally. On direct appeal the only avenues of attack open would have been the validity of the guilty plea and the power of the court to sentence as it did. Commonwealth v. Culpeper, 434 Pa. 15, 252 A. 2d 624 (3969). These avenues, of course, are also open on a POHA petition, 19 P.S. §1180-3, and since those issues are also raisable in this proceeding, no purpose would be served by granting permission to appeal nune pro tune. Commonwealth v. Dillinger, 440 Pa. 336, 341, 269 A. 2d 505 (1970).

¶12 Appellant’s conviction predates by a year the decision in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), which was held in Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882 (1966) not to require retroactive application. Hence, the constitutional standard by which appellant’s waiver of counsel would be tested—were the issue reached here—would stem from Escobedo, as interpreted by our Court. See, e.g., Commonwealth v. Schmidt, 423 Pa. 432, 224 A. 2d 625 (1966) ; Commonwealth v. Campbell, 442 Pa. 313, 275 A. 2d 64 (1971).

¶13 The Supreme Court of the United States, in testing the competency of an attorney who has advised a guilty plea, has used language to the effect that counsel will not be found constitutionally ineffective unless he was “in gross error” or has committed “serious derelictions.” McMann v. Richardson, 397 U.S. 759, 772, 774, 25 L. Ed. 2d 763 (1970). To some extent these phrases have been echoed in our opinions. See Commonwealth v. Moroz, 444 Pa. 493, 496, 281 A. 2d 842 (1971) (“gross error”) ; Commonwealth v. Brown, 443 Pa. 21, 27, 275 A. 2d 332 (1971) (“gross error”) ; Commonwealth v. Ward, 442 Pa. 351, 353, 275 A. 2d 92 (1971) (“serious derelictions”) ; Commonwealth v. Marsh, supra, 440 Pa. at 594 (adopting the McMannlanguage explicitly).

¶14On a careful re-reading of McMann v. Richardson, however, we have doubts that the above quoted phrases were intended to fix a new or higher standard. Other language in that opinion would indicate application of a standard more consonant with then existing tests for the competency of counsel. See McMann, supra, at 770 (“the good faith evaluations of a reasonably competent attorney”) ; and at 771 (“within the range [of competence] demanded of attorneys in criminal cases”). The phrases suggesting the requirement of “gross error” and “serious derelictions” were, we think, in response to the particular facts involved in McMann. There it was argued that counsel who had recommended a guilty plea and who had based his opinion on the New York procedure prior to Jackskon v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908 (1964), was incompetent. Reasonable attorneys, save in the rarest of instances, rely on the then existing law, and one who would attempt to show the existence of one of those rare instances necessarily has a difficult task.

¶15Rather than attempt to perpetuate whatever real (rather than purely semantical) difference there may be between our Pennsylvania test for the effectiveness of counsel found in Commonwealth ex rel. Washington v. Maroney, supra,and the language of “gross error” and “serious dereliction” in McMann, we prefer to rely on the single standard of Maroneyand the cases applying it.

¶16 It does not follow, of course, that as a matter of law counsel who advises a guilty plea following an unsuccessful suppression motion can never be found to be incompetent. But where as here *351the success of the motion turned on questions of fact, and the Commonwealth did adduce evidence to support a finding adverse to the defendant, counsel’s decision to advise a guilty plea, other factors excluded, cannot be faulted.