decided: June 15, 1972.
Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1971, No. 321, in case of Commonwealth of Pennsylvania v. Thomas Boyd.
John J. Bradley and Gilfillan, Gilpin and Brehman, for appellant.
James Garrett and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.
[ 221 Pa. Super. Page 372]
Defendant was found guilty and sentenced to eighteen months to three years in prison for the crimes of assault and battery, aggravated assault and battery, and assault and battery with intent to murder. He appeals on the ground that the lower court committed reversible error in failing to conduct an on-the-record examination to determine whether his plea of nolo contendere was entered knowingly, intelligently, and voluntarily. Unfortunately for defendant, the record does not support his claim that he entered a plea of nolo contendere. The colloquy between the district attorney
[ 221 Pa. Super. Page 373]
and defendant at trial established defendant's voluntary and intelligent waiver of a jury trial. During this colloquy he answered he had "no defense" to the question whether or not he pleaded guilty or not guilty. However, defendant's claim that his "no defense" statement was in effect a plea of nolo contendere is not supported by the record which discloses that he was in fact afforded a trial without jury after, as above stated, having properly waived a jury trial. At trial, he attempted to defend, explain and mitigate his crime of assault and battery and aggravated assault and battery on the ground that he had "lost a home on account of this woman. She won't stay home, she runs around, she likes to hang in bars, she's a tramp." He denied his intent to kill: "Q. Did you intend to kill her? A. No, not really. I was just in anger."
Aside from defendant's words "no defense", none of the necessary elements of the plea of nolo contendere are present in this case. A plea of nolo contendere must be accepted and approved by the trial judge: Commonwealth v. Smith, 151 Pa. Superior Ct. 113 (1942). The judge did not accept or approve the plea here.
A recent exposition of the plea "nolo contendere" appears in the case of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), where Justice White said in a footnote: "Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer of leniency." In Hudson v. U. S., 272 U.S. 451 (1926), the court describes a plea of nolo contendere as one by which the defendant "does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court
[ 221 Pa. Super. Page 374]
for the purpose of the case to treat him as if he were guilty." In the instant case there was neither a waiver of trial nor of defense.
Where a plea of nolo contendere is tendered by the defendant and accepted by the court, it is not the province of the court to occupy itself with the question of guilt or innocence. Such a plea when accepted is, in its effect upon the case, equivalent to a plea of guilty, testimony being taken thereafter only as an aid to the judge in fixing sentence: Commonwealth v. Smith, supra; Commonwealth v. Ferguson, 44 Pa. Superior Ct. 626 (1910). In the instant case the judge received evidence from both the prosecution and defense and then on the basis of that evidence adjudged defendant guilty on all counts. By this judgment the judge made clear he had not accepted or approved a plea of nolo contendere but had conducted a trial on the question of defendant's innocence or guilt.
Had the lower court recognized and accepted a plea of nolo contendere by the defendant, we would hold that such a plea should be treated no differently than a plea of guilty with respect to the necessity for an on-the-record examination to determine whether the plea was knowingly, intelligently, and voluntarily made. The more meticulous a judge is in this inquiry, the more expeditious can be the disposition of post conviction attacks on such a plea with consequent discouragement of frivolous post conviction hearing petitions regarding the constitutional validity of such a plea.
Rule 11 of the Federal Rules of Criminal Procedure, by its 1966 amendment, provides that a plea of nolo contendere is entitled to the same on-the-record examination accorded a plea of guilty. Similarly, the American Bar Association in its Project on Minimum Standards for Criminal Justice (Approved Draft 1968), recommended that pleas of nolo contendere receive the
[ 221 Pa. Super. Page 375]
same consideration as pleas of guilty with respect to on-the-record examinations.*fn1
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It is true that Rule 319 of the Pennsylvania Rules of Criminal Procedure*fn2 does not expressly provide for an on-the-record examination with respect to a nolo contendere plea. However, such silence cannot preclude judicial recognition of such a requirement.
But we are not in this case, for the reasons already stated, presented with a plea of nolo contendere, defendant having been adjudged guilty after trial without a jury during which he presented evidence in his behalf.