Appeal, No. 236, Jan. T., 1961, from judgment of Superior Court, Oct. T., 1960, No. 91, affirming judgment and order of Court of Quarter Sessions of Blair County, Jan. T., 1960, No. R.D. 81, in case of Commonwealth v. Alfred Turchetta. Order reversed.
Stephen M. Feldman, with him Merle K. Evey, Joseph G. Feldman, and Feldman & Feldman, for appellant.
Frank B. Warfel, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
On October 6, 1958, appellant Turchetta pleaded guilty to sixteen bills of indictment in Blair County. On each of two pairs of these bills, charging false pretenses and conspiracy, there was a co-defendant, Steidle on one pair and Strong on the other. These men pleaded not guilty and their cases were severed and tried, consecutively, on December 7, 8, and 9, 1959. Appellant appeared as a witness for them at each trial. Steidle was tried first and convicted: Strong was acquitted.
On January 12, 1960, appellant was sentenced to 2 1/2 to 5 years on bill 19, June Session, 1958, which was the Steidle case, and to 2 1/2 to 5 years on bill 81, January Session, 1960, which was the Strong case, to run consecutively after the sentence on the Steidle bill: on the remaining bills he was given 1 to 2 years on each, to run concurrently with the sentence on the 1958 bill.
Defendant filed a motion for a new trial based on the court's refusal to allow him to withdraw his plea. He also filed a petition for leave to withdraw all pleas of guilty and to vacate his sentences, and a hearing was held on it on February 11, 1960. His testimony in the Steidle and Strong cases was offered in evidence at this hearing. The court denied both petition and motion. Defendant appealed to the Superior Court on all the bills to which he had pleaded guilty but later withdrew all but number 81 of June Session, 1958, the Strong case. The Superior Court affirmed the action of the court below and we allowed an allocatur.
Appellant made five attempts to withdraw his pleas of guilty: three before trial, one after trial and before sentence, and one after sentence. We will not concern ourselves with those attempts made after trial, since we are of opinion that those before trial should have
been heeded and are in a different case than any made after trial.
The record shows that on December 7, 1959, the day Steidle was tried, Mr. Smorto, counsel for appellant, moved "to withdraw the plea entered previously by the Defendant to the Indictment in question." This was denied. On December 8, the day of Strong's trial, Mr. Woodcock, appearing for Mr. Smorto on appellant's behalf, again moved "that the pleas of guilty entered by Mr. Turchetta to the charge of false pretense and to the charge of conspiracy be withdrawn for the reason that the pleas were entered at the time when there was a possibility of a ...