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COMMONWEALTH v. LYNCH (06/16/67)

decided: June 16, 1967.

COMMONWEALTH
v.
LYNCH, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, 1966, Term, Nos. 3493 and 3495, in case of Commonwealth of Pennsylvania v. Timothy Lynch.

COUNSEL

Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, Assistant District Attorney, with him Victor J. DiNubile, Jr. and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 210 Pa. Super. Page 173]

The issue involved here is the right of a criminal defendant to withdraw his plea of guilty before sentence.

[ 210 Pa. Super. Page 174]

The appellant was charged with assault and battery, aggravated assault and battery, assault and battery by cutting and conspiracy. On August 8, 1966, while represented by Isaac Pepp, Esq., he plead guilty to the assault and battery charge, and at the same time the assistant district attorney asked permission to nol. pros. the other three charges and recommended to President Judge Joseph Sloane, who was hearing the case, that a sentence of six months to one year be imposed to run concurrent with a sentence previously imposed by Judge Raymond Pace Alexander, another Philadelphia Judge. The plea and recommendations were the result of an agreement entered into by appellant's counsel and the assistant district attorney. Judge Sloane granted leave to nol. pros. the other charges and imposed a sentence in accordance with the recommendation of the assistant district attorney. After imposing this sentence Judge Sloane ordered a post-sentence investigation. As a result of the investigation Judge Sloane decided to alter the sentence, and after proper notice to all parties called the appellant before him for sentence on August 31, 1966. At that time appellant's counsel, Mr. Pepp, requested permission to withdraw the plea of guilty. Permission was refused by the court who vacated the sentence of August 8th and imposed a sentence on the assault and battery charge of not less than six months nor more than twenty-three months to begin at the expiration of the sentence imposed by Judge Alexander from which sentence this appeal is taken.

Appellant asks for a new trial on the ground that he should have been permitted to withdraw his guilty plea.

"A motion to withdraw a plea of guilty and enter a plea of not guilty is addressed to the sound discretion of the court before which the plea was entered, and unless there has been a clear abuse of that discretionary

[ 210 Pa. Super. Page 175]

    power its action will not be reversed." Commonwealth ex rel. O'Niel v. Asbe, 337 Pa. 230, 231, 10 A.2d 404 (1940). Thus, unless Judge Sloane abused his discretion we must affirm.

Appellant argues that Judge Sloane promised to impose the sentence of August 8th prior to the entry of the plea and that this promise induced the plea. We are satisfied that Judge Sloane did not make any promises, express or implied, and ...


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