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COMMONWEALTH v. FORBES (01/19/73)

decided: January 19, 1973.

COMMONWEALTH
v.
FORBES, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, No. 336, in case of Commonwealth of Pennsylvania v. Robert Forbes.

COUNSEL

Jonathan Miller, Assistant Defender, with him Francis S. Wright, Jr. and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Linda Conley, Assistant District Attorney, with her James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones concurs in the result.

Author: Roberts

[ 450 Pa. Page 187]

On December 5, 1969, Sonia Rosenbaum was robbed and assaulted while in her home in Philadelphia. The victim, who was bound and gagged by the intruders, died as a result of the assault.

Subsequently, appellant, sixteen year old Robert Forbes, was indicted for various crimes stemming from this incident. On November 4, 1970, appellant entered pleas of guilty to murder, burglary, aggravated robbery, larceny, receiving stolen goods, and conspiracy. Prior to receiving these pleas, the trial court conducted an on-the-record colloquy, as required by Pa. R. Crim. P. 319 (a). Having concluded that the pleas were "voluntarily and understandingly made", the court then held a hearing, pursuant to Pa. R. Crim. P. 319A, to determine whether "the case may constitute murder in the first degree." Based on the evidence presented by stipulation, the trial judge determined that such a case had been made out and deferred any further action until a three judge panel was convened.

On December 8, 1970, a three judge court was impaneled. At that time, however, appellant expressed a desire to withdraw his guilty plea because, as he stated, "I don't want to plead guilty to nothing I didn't do." The court continued the matter until a hearing could be held on appellant's request to withdraw his guilty plea.

At that hearing, on February 18, 1971, appellant said he no longer desired to pursue his withdrawal request; therefore, on February 25, 1971, the three judge panel reconvened to determine the degree of guilt. At that hearing, it became apparent that appellant's decision to abandon his withdrawal request was the result of defense counsel's threat to withdraw from the case. The court, nevertheless, proceeded on appellant's initial

[ 450 Pa. Page 188]

    entry of the guilty plea. Appellant was found guilty of first degree murder and sentenced to life imprisonment. Sentence was suspended on the other charges.

On this direct appeal, appellant contends*fn1 that the withdrawal of his guilty plea was obstructed by defense counsel's decision to withdraw from the case if appellant pursued his retraction of the original guilty plea. He urges that the trial court erred in failing to grant his withdrawal request -- made prior to any evidence being offered at the degree of guilt hearing and, thus, prior to adjudication and imposition of sentence. We agree and must reverse.

The record supports appellant's contention that he abandoned the withdrawal of his guilty plea because of defense counsel's intention to withdraw from the case. Counsel specifically stated, on the record, at the final hearing: "I have indicated to him before that if he felt, that if he insisted upon withdrawing his plea and Judge Bruno thought there were circumstances under which he should be able to withdraw that, I would ask to withdraw from the case. The relationship that we have ...


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