decided: June 22, 1972.
Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 26 of 1971, in case of Commonwealth of Pennsylvania v. Leroy Harry Getz.
James S. Sorrentino, Assistant Public Defender, for appellant.
Michael Ranck and George T. Brubaker, Assistant District Attorneys, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
Author: Per Curiam
[ 222 Pa. Super. Page 88]
Judgment of sentence affirmed.
Judgment of sentence affirmed.
Dissenting Opinion by Hoffman, J.:
This is an appeal from appellant's 1971 guilty plea to burglary and larceny. The only issue raised by appellant in this appeal is the voluntariness of his guilty plea.
Prior to the lower court's acceptance of appellant's plea, the court conducted the following colloquy: "The Court: Mr. Getz, you have entered your plea of guilty to the charge of Burglary and Larceny and you appear with your counsel, nevertheless, the Court wishes to ascertain before accepting your plea whether you do this knowingly and intelligently and you are entering this plea with full knowledge? Defendant: Yes, sir. The Court: Also in so doing, you have waived the right to a trial by a jury? Defendant: Yes, sir. The Court: All right, state the facts, officer. Detective
[ 222 Pa. Super. Page 89]
McComsey: Well, on December 20, 1970, the defendant entered the Covenant United Methodist Church, 301 West Orange Street, Lancaster, and did steal a scrap book, two General Electric dimmer switches, a metal first aid box, and Philco stereo record player. He was later apprehended and these items were recovered."
In Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 106, 237 A.2d 196 (1968), our Supreme Court held that "the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences."
Following the West decision our Supreme Court adopted Pennsylvania Rule of Criminal Procedure 319, which provides that a judge "shall not accept [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly made." The Rule further provides that "[s]uch inquiry shall appear on the record."*fn1
[ 222 Pa. Super. Page 90]
In the instant case appellant did not file post-trial motions. For this reason the lower court was not able to determine if appellant's plea was made voluntarily and knowingly. As stated by Judge Spaulding of our Court in a dissenting opinion which was later adopted by the Pennsylvania Supreme Court, "when an inadequate record on direct appeal prevents appellate determination of whether a guilty plea is voluntarily made, the case should be remanded for an evidentiary hearing." Commonwealth v. Kelly, 215 Pa. Superior Ct. 116, 118, 257 A.2d 53 (1969), rev'd per curiam, 436 Pa. 21, 258 A.2d 325 (1969).
"(7) Is the defendant aware that the judge is not bound by any plea bargain or other arrangement between defense counsel and the attorney for the Commonwealth?"
*fn2 It should be noted that this case was tried after Commonwealth ex rel. West v. Rundle, supra, and therefore the Commonwealth now has the burden of showing that the plea was made both voluntarily and knowingly. Commonwealth v. Cushnie, 433 Pa. 131, 249 A.2d 290 (1969); Boykin v. Alabama, 395 U.S. 238 (1969).