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COMMONWEALTH v. STARR (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
STARR, APPELLANT



Appeal from decision and sentence of Court of Common Pleas of Beaver County, No. 285 of 1972, in case of Commonwealth of Pennsylvania v. Gary Lee Starr.

COUNSEL

Richard E. Davis, Assistant Public Defender, for appellant.

Joseph M. Stanichak, Assistant District Attorney, with him Joseph S. Walko, District Attorney, for Commonwealth, appellee.

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

Author: Pomeroy

[ 450 Pa. Page 487]

In June, 1972 Gary Lee Starr was convicted of the first degree murder of his wife by a three-judge panel in Beaver County following his plea of guilty to murder generally. He was sentenced to life imprisonment. Shortly thereafter Starr's counsel, although having filed no post-trial motions in arrest of judgment or for a new trial, placed before the court a "Petition to Withdraw Guilty Plea" on the ground that appellant's plea was "not a voluntary or intelligent plea." The trial court denied that petition without a hearing and appellant then prosecuted this direct appeal.*fn1

In this Court appellant makes the following contentions: (1) his plea of guilty was not knowing and intelligent; (2) the trial court erred in not permitting plea withdrawal because sentence had already been imposed; (3) the trial court erred in its application of Pennsylvania Rule of Criminal Procedure 319A; (4) the trial court erred in failing to give proper weight to the testimony of a psychiatrist; and (5) there was insufficient evidence to convict appellant of first degree murder.

(a) Appellant's Plea of Guilty and His Attempt To Withdraw It

The trial court denied Starr's petition to withdraw his guilty plea after sentencing for the sole reason that at such a time "the Court has no authority to consider such a petition," citing Pennsylvania Rule of Criminal

[ 450 Pa. Page 488]

Procedure 320.*fn2 Although neither appellant nor the Commonwealth discuss the question of power vel non in the trial court to consider a post -sentencing attempt to withdraw a plea, many past decisions of this Court have assumed the existence of that power. See, e.g., Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971) (post-sentencing attempt to withdraw guilty plea on basis of non-performance by prosecutor of plea bargain); Commonwealth v. Scoleri, 415 Pa. 218, 247-48, 202 A.2d 521 (1964) (same, on the basis of contradictory evidence and a factual situation said by the Court to be "sui generis"). Cf. Commonwealth v. Kontos, 442 Pa. 357, 275 A.2d 89 (1971) (attempt to withdraw a guilty plea via the Post Conviction Hearing Act); Commonwealth v. Ward, 442 Pa. 351, 275 A.2d 92 (1971); Commonwealth v. Dillinger, 440 Pa. 336, 269 A.2d 505 (1970) (attempt to withdraw plea made in a nunc pro tunc post-trial motion made post-sentencing).*fn3 While we do not fault the lower court's reasonable reading of the language of Rule 320, we hold, consistent with our case law cited supra, that a court of common pleas is in fact empowered to consider such a motion after sentencing.

It is well recognized that a pre-sentencing plea withdrawal motion and a ...


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