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COMMONWEALTH v. BURTON (03/20/69)

decided: March 20, 1969.

COMMONWEALTH
v.
BURTON, APPELLANT



Appeal from order of Criminal Courts of Delaware County, March T., 1966, Nos. 446 to 463, inclusive, in case of Commonwealth of Pennsylvania v. William A. Burton.

COUNSEL

Mervyn R. Turk, Assistant Public Defender, for appellant.

Ralph B. D'Iorio and Anna Iwachiw Vadino, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J. Montgomery and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 214 Pa. Super. Page 146]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

This case involves an attack on a guilty plea.

The facts are not in dispute and have been aptly summarized by the lower court. Appellant had been charged with armed holdup. He was tried before a jury and faced a maximum penalty of ten to twenty years imprisonment if convicted. The Commonwealth presented its evidence, and the court recessed for lunch. "After lunch, Joseph F. Mulcahy, Esq., representing the defendant, talked to (the trial judge), who said 'well, fellows, it looks to me like this jury will find your boy guilty, if you want to go ahead with the trial, fine, but if they enter a plea at this time I will give them lighter sentences but if they would like to go through with the trial, make it an entire trial and if he is convicted he will get more of a sentence.'" This statement induced appellant to change his plea to Guilty whereupon he was sentenced to serve from two and one half to five years imprisonment.

In Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1968), plea bargaining between defendant and the Commonwealth was generally upheld. The Supreme Court, however, clearly proscribed participation by the trial judge in the plea bargaining process. "'Our concept of due process must draw a distinct line between, on the one hand, advice from and "bargaining" between defense and prosecuting attorneys and, on the other hand, ...


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