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June 11, 1958


Appeal, No. 85, April T., 1958, from judgment of Court of Quarter Sessions of Allegheny County, entered June 10, 1957, in case of Commonwealth of Pennsylvania v. Edward Todd. Judgment reversed.


Carl Blanchfield and John J. Malik, Sr., for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 186 Pa. Super. Page 274]


The defendant was charged, in the first count of an indictment, with the unlawful possession of heroin and in the second count with the unlawful sale of the drug in violation of the Act of June 19, 1953, P.L. 290, 35 PS § 865, amending prior legislation. On June 10, 1957, he pleaded guilty to the two charges before Judge CERCONE in open court. The court immediately went into a hearing to develop the circumstances attending the commission of the crimes. The hearing was continued to June 13, 1957, at which time the defendant moved for leave to withdraw his plea of guilty and to substitute a plea of not guilty for trial of the charges by a jury. The court peremptorily refused the motion and at the conclusion of the hearing on that day sentenced the defendant to pay a fine of $7,500 and to undergo imprisonment for a flat term of thirty years, "effective as of the expiration of [his] present sentence." The sentence referred to, had been imposed by a United States District Court in Ohio for a term of 10 years imprisonment in a Federal Penitentiary. In the course of the hearing before the sentencing judge the defendant frankly admitted that on November 14, 1952 he had pleaded guilty in Allegheny County to possession of narcotic drugs and was placed on probation for one year; and also that on April 28, 1953 he had been convicted of unlawful possession of narcotic drugs and was sentenced to imprisonment in the Allegheny County Jail for a term of not less than 11 1/2 nor more than 23 months. The sentence of defendant to the term of imprisonment involved in the present appeal was intended as a

[ 186 Pa. Super. Page 275]

    sentence as a third offender under the 1953 amendment, supra.*fn1

We may take it as settled law that an application to withdraw a plea of guilty and to enter a substitute plea of not guilty (under the Act of April 15, 1907, P.L. 62, 19 PS § 241) is addressed to the discretion of the court before which the plea is entered, and unless there has been a clear abuse of that discretionary power, its action may not be reversed on appeal. Cf. Commonwealth v. Senauskas, 326 Pa. 69, 191 A. 167. In our decision in Com. v. DiPaul, 122 Pa. Superior Ct. 53, 184 A. 480, upon which the present appellant heavily relies, we enumerated some of the reasons upon which the withdrawal of a plea of guilty has been permitted, thus: where the plea had been entered in ignorance or under a misconception of the nature of the charge; where not made freely and voluntarily; where entered through fear or by mistake; or where the plea was induced by threats or by promises of leniency; and where the defendant was insane when the offense was committed; where the defendant believed that he was pleading guilty to a less serious crime than charged, or otherwise was inconsiderately entered. In the Senauskas case, supra, the defendant's motion to withdraw his plea was properly refused because, contrary to his contention, there was no proof of a prior

[ 186 Pa. Super. Page 276]

    agreement with the trial court, that on conviction of the charge of murder "there would be no electrocution." In the DiPaul case, supra, the defendant on pleading guilty, testified "freely, fully and voluntarily" in confession of his guilt of the crime of arson. He also testified that his statement in court was made freely and of his own free will, and also that after his arrest he had been accorded good treatment at police headquarters by all officers. He had made this same statement to an uncle who came to the barracks at his request. He also had voluntarily given the same statement of the details of his connection with the crime to the district attorney. At the hearing on his subsequent petition to withdraw his plea he testified that at the police barracks he had been threatened with physical torture, had been refused food and that he had entered a plea of guilty through fear. The court below found this testimony wholly incredible and we, on the same conclusion, stated: "It would be trifling with the administration of criminal law to allow the defendant in this case to withdraw his plea of guilty."

The undisputed factual situation here presented distinguishes the present proceeding from the DiPaul and Senauskas cases, supra. There can be no question that the federal authorities had been able to make a number of "buys" from Todd, and the sentence he was serving in a federal penitentiary had been imposed on his conviction of violation of the federal narcotics law. After defendant's arrest in the present case in 1955 both the federal narcotic agent and the Pittsburgh police enlisted his aid in an effort to apprehend and convict violators of the narcotic drug law in Allegheny County. Thomas E. McGuire, a Federal Narcotice ...

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