Commonwealth v. Bhillips

380 A.2d 1210, 475 Pa. 427, 1977 Pa. LEXIS 913

• Court: Supreme Court of Pennsylvania
• Decided: December 1, 1977
• Docket: 71
• Status: Published

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

Appellant, John Joseph Gergel, was tried by a judge and convicted of murder in the first degree, criminal attempt-escape and aggravated assault. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction, with concurrent terms of three and one-half to seven years for the other convictions. This appeal followed.¹

The facts are as follows. On December 15,1974, appellant was arrested in connection with a burglary investigation and placed in the Monroe County Jail. A recent escapee from a New Jersey prison, appellant had used an alias of Jason Bhillips. On December 16, appellant asked to be allowed to make a phone call. Once out of his cell, he pulled a large steel mop bucket handle from his trousers and began beating the two guards accompanying him. One of the guards, Samuel VanAuken, died of a skull fracture.

Appellant raises one issue on this appeal. He claims that he was denied his right to trial by jury under the provisions of the Sixth Amendment to the federal constitution because § 1311 of the Crimes Code provided for the imposition of the death penalty in a jury trial under certain circumstances, but no such provision was applicable to either nonjury trials or guilty pleas.² Assuming this to be correct, we do not agree with appellant’s position.

The Crimes Code provides, inter alia:

“(d) Aggravating and mitigating circumstances. — If a murder of the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death. If a murder of the first degree is not accompanied by any of the following aggravating circumstances or is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment:

“(1) Aggravating circumstances:

“(i) The victim was a fireman, peace officer or public servant concerned in official detention as defined in section 5121 of this title (relating to escape), who was killed in the performance of his duties.

“(ii) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.

“(in) The victim was being held by the defendant for ransom or reward, or as a shield or hostage.

“(iv) The death of the victim occurred while defendant was engaged in the hijacking of an aircraft.

“(v) The victim was a witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.

“(vi) The defendant committed a killing while in the perpetration of a felony.

“(vii) In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.

“(viii) The offense was committed by means of torture.

“(ix) The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense. “(2) Mitigating circumstances:

“(i) The age, lack of maturity, or youth of the defendant at the time of the killing.

“(ii) The victim was a participant in or consented to the defendant’s conduct as set forth in section 1311(d) of this title or was a participant in or consented to the killing.

“(iii) The defendant was under duress although not such duress as to constitute a defense to prosecution under section 309 of this title (relating to duress).

“(e) Guilty pleas and non-jury trials. — In cases of pleas of guilty, or trial by court, the court shall impose sentence in accordance with Rules of Criminal Procedure as promulgated by the Supreme Court of Pennsylvania.”³ Act of December 6, 1972, P.L. 1482, No. 334, amended December 30,1974, P.L. 1052, No. 345, 18 P.S. § 1311. (Emphasis added.)

Because appellant killed a “public servant concerned in official detention,” while no mitigating circumstances were present, appellant could very well have been sentenced to death for the murder. This fact, however, is of no moment to appellant.

In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court dealt with arguments identical with that which is raised by appellant. In both cases, the defendants argued that their guilty pleas⁴ were coerced by a fear of death. In Alford, 400 U.S. at 31, 91 S.Ct. at 164, the court stated:

“We held in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), that a plea of guilty which would not have been entered except for the defendant’s desire to avoid a possible death penalty and to limit the maximum penalty to life imprisonment or a term of years was not for that reason compelled within the meaning of the Fifth Amendment. Jackson established no new test for determining the validity of guilty pleas. The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage. . . . ”

This court, in Commonwealth v. Melton, 465 Pa. 529, 539-40, 351 A.2d 221 (1976), adhered to the reasoning of Brady, supra, and Alford, supra :

“That U. S. v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), is entitled to no broader reading is evident from the Supreme Court’s decision in Brady v. U. S. [supra]. The Court there declined to order the vacation of a guilty plea shown to have been induced by fear of the jury-imposed death penalty permitted under the provision of the Federal Kidnapping Act and found unconstitutional in Jackson. The Court stressed that Jackson ‘neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both “voluntary” and “intelligent.” ’ 397 U.S. at 747, 90 S.Ct. at 1468, 25 L.Ed.2d at 756. Again, in North Carolina v. Alford, [supra], the Court said:

‘That [a defendant] would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.’

“We believe the present case to be controlled by these decisions. Appellant has failed to demonstrate that his confession was not voluntary and intelligent; the mere fact that he alleges that it was induced by fear of the imposition of the death penalty by a supposedly ‘hanging jury’ is, by itself, insufficient to vitiate the plea.”

Here, appellant argues only that his waiver of his Sixth Amendment right to trial by jury was coerced because of the fear of a possible death sentence. Brady and Alford establish, however, that this alone is insufficient to show that a waiver was unknowing or involuntary, the standard test to be used when the waiver of a constitutional right is involved.I. ***⁵

Judgment of sentence affirmed.

ROBERTS, J., files a dissenting opinion in which MANDERINO, J., joins. MANDERINO, J., files a dissenting opinion. JONES, former C. J., took no part in the consideration or decision of this case.

1 . Only the murder conviction has been appealed.

2 . Pa.R.Crim.P. 352 was promulgated to handle possible death sentences when a plea of guilty is entered. Rule 353 was likewise promulgated for those instances where jury trial was waived. Neither rule, however, was in effect at the time of appellant’s trial.

3 . See footnote 2, supra.

4 . Although Brady and Alford dealt with guilty pleas as opposed to a waiver of jury trial, we believe their reasoning is persuasive. In Brady, 397 U.S. at 748, 90 S.Ct. at 1468, the court stated:

“That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so — hence the minimum requirement that his plea be the voluntary expression of his own choice. But the plea is more than an admission of past conduct; it is the defendant’s consent that judgment of conviction may be entered without a trial — a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Footnotes omitted.) (Emphasis added.)

As the court has demonstrated, a guilty plea contains a waiver of jury trial plus much more. Any reasoning concerning a guilty plea would thus be applicable to a situation where fewer constitutional rights are involved.

5 . As appellant has advanced only one theory to challenge the constitutionality of our sentencing procedure, only that theory need be considered. Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975).