The opinion
Dissenting Opinion by
Mh. Justice Roberts:
I dissent. In my view appellant’s plea of guilty was motivated by a fear of the death penalty and the trial court’s statement that upon a guilty plea, the court “would not impose the death sentence.”
The record reveals the following exchange between the trial judge and appellant. “By the Court: Have you changed your plea because you were afraid the jury might find you guilty and sentence you to death; I would assume that is possible, is that right? A. [Appellant] Yes. By the Court: What did I tell you a few niinutes ago? Did you understand when I said if you were tried before me without a jury on a plea of guilty and I would find you were guilty from all the evidence beyond a reasonable doubt, I would find you guilty of murder in the first degree but I would not impose the death sentence. Is that right? A. Yes.”
Inherent in this colloquy are the same pressures on a defendant that the United States Supreme Court found unconstitutional in United States v. Jackson, 390 U.S. 570 , 88 S. Ct. 1209 (1968). Confronted with a federal statute which permitted a jury, but not the trial judge, to impose the death penalty, the Supreme Court stated: “[T]he defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. ... The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.” Id. at 581 , 88 S. Ct. at 1216 (footnote omitted).
*105 Because here the fear of the death penalty emphasized by the trial court’s comments was the significant factor in appellant’s decision to plead guilty, he is entitled to a new trial. See Commonwealth v. Floyd, 451 Pa. 367 , 304 A. 2d 131 (1973) (failure to pursue post-trial motions).
Moreover, the plea is constitutionally infirm because by his questioning the trial judge, with his inherently unequal bargaining power, induced appellant’s plea. Cf. Commonwealth v. Evans, 434 Pa. 52 , 252 A. 2d 689 (1969). See American Bar Association Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty §3.3 (Approved Draft, 1968); American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge §4.1(a) (Approved Draft, 1972). The colloquy preceding the entry of the plea indicates most persuasively that the plea could hardly be classified as knowing and voluntary.
Since appellant, in my view, is entitled to a new trial because his plea was improperly induced, there is no need to address his additional claims of error. I would reverse the judgment of sentence and grant appellant a new trial.
Mr. Justice Nix and Mr. Justice Mandekino join in this dissenting opinion.