Commonwealth v. Hargrove

342 A.2d 77, 462 Pa. 563, 1975 Pa. LEXIS 907

• Court: Supreme Court of Pennsylvania
• Decided: July 7, 1975
• Docket: 59
• Status: Published

Opinions

OPINION OF THE COURT

EAGEN, Justice.

On February 4, 1963, the appellant, Morris Hargrove, while assisted by counsel, entered a plea of guilty to murder in Allegheny County. An evidentiary hearing followed after which Hargrove was adjudged guilty of murder in the first degree and sentenced to life imprisonment. A direct appeal from the judgment of sentence is now before us.¹

Herein, the validity of Hargrove’s 1963 guilty plea is attacked on two grounds:

First, it is urged the plea should be set aside as not knowingly and intelligently entered because the record of the plea proceedings establishes that, before the plea was accepted, the trial court failed to conduct an adequate inquiry or colloquy to determine if Hargrove were aware of the impact and consequences of a guilty plea. This position will not be sustained.

Since the instant plea was entered prior to our decision in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), the burden of proving that the guilty plea was not knowing and intelligent was upon Hargrove. Commonwealth v. Riley, 444 Pa. 498, 282 A.2d 231 (1971). An opportunity to establish this was given Hargrove at a counseled hearing on his petition for post conviction relief. The credibility of the witnesses at this hearing was for the hearing judge and he saw fit, as was his right, to believe the testimony of Hargrove’s trial counsel, which clearly demonstrated that before entering his plea, Hargrove was completely aware of what he was doing and entered the plea fully cognizant of its impact and possible consequences.

The second reason advanced to set aside the guilty plea is that “after entering his plea [Hargrove] testified to facts which if believed, would establish a legitimate claim to the affirmative defense of self-defense”. Cf. Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970). The present case, however, does not fall within the rationale of Roundtree and its progeny. Roundtree is only applicable where the accused at the time the plea is entered indicates he has a valid defense to the charge. In the instant case, Hargrove, at the time of pleading guilty, did not assert any facts indicating he killed in self-defense. Instead, this claim arose in his testimony at the subsequent degree of guilt hearing. We dismissed a similar claim in Commonwealth v. Smith, 454 Pa. 256, 260, 312 A.2d 396, 398 (1973) by stating:

“Appellant also argues that his guilty plea was not voluntarily entered when his testimony raised an issue of self-defense. This argument is meritless. Assuming that appellant did raise a plausible self-defense claim, the testimony giving rise to that claim was not made contemporaneously with the entry of the guilty plea. Commonwealth v. Thomas, 450 Pa. 548, 301 A. 2d 359 (1973); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972). We repeat what we said in Thomas: ‘The only statements which can be considered by the trial judge in determining whether to accept a guilty plea are those made at the time the plea is entered.’ 450 Pa. at 553, 301 A.2d at 363. The statements which appellant urges establish self-defense were made at the degree-of-guilt hearing subsequent to the entry of his plea.”

Hence, the trial court did not err in accepting appellant’s guilty plea.²

Hargrove’s final claim is that the evidence was insufficient to sustain a finding of murder in the first degree. At the evidentiary hearing following the guilty plea, the testimony was undisputed that Hargrove took a loaded revolver with him to the place where he was to meet the victim; and during the meeting pulled the gun from his trousers and fired seven shots into the victim’s body. From these facts all of the elements of murder in the first degree are clearly inferable.

Judgment affirmed.

JONES, C. J., did not participate in the consideration or decision of this case. NIX, J., filed a dissenting opinion.

1 . Following the adjudication of guilt and sentence no post trial motions were filed, and no appeal was entered. However, on August 31, 1972, after a hearing on a petition filed by Hargrove seeking post conviction relief, the trial court granted him the right to file post trial motions “nunc pro tunc”. These motions were filed and later dismissed. This appeal followed.

In 1965, Hargrove was denied habeas corpus relief in the trial court and this Court affirmed. See 420 Pa. 120, 215 A.2d 635 (1966). In 1966, Hargrove unsuccessfully sought habeas corpus relief in the United States District Court for Western Pennsylvania, and the United States Court of Appeals for the Third Circuit affirmed the denial.

2 . The fact that appellant testified only a few hours after he entered his plea is without significance. In Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972), we rejected a similar alleged protestation of innocence one day after the entry of the guilty plea because it, too, was not simultaneous to his guilty plea.