Appeal from judgment of sentence of Court of Common Pleas of York County, Dec. T., 1972, No. 145, in case of Commonwealth of Pennsylvania v. Charles T. Moore.
Harry L. McNeal, Jr., Assistant Public Defender, for appellant.
Morrison B. Williams, First Assistant District Attorney, and Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, J. Wright, P. J., would affirm on the opinion of the court below.
[ 225 Pa. Super. Page 265]
This is an appeal by the defendant-appellant, Charles T. Moore, from the imposition of a sentence of 2 1/2 to 5 years imposed by the Court of Common Pleas, Criminal Division, of York County, after a plea of guilty to robbery while armed with an accomplice; wantonly pointing a deadly weapon; larceny and receiving stolen goods. At the time of the plea, he was represented by counsel.
The facts are as follows: On October 6, 1972, the defendant entered his plea of guilty and Judge Shadle of the court below after pre-sentence investigation, sentenced him to imprisonment in a State Correctional Institution for a period of not less than 1 1/2 years nor more than 3 years.
Immediately following the imposition of sentence, the defendant indicated that he desired to change his plea and attempted to explain his misconduct in a colloquy with the court as follows: "The Court: Is there anything you or he want to say on that subject? Charles T. Moore: I'd like to say -- yes, Your Honor. Mr. Ruth: Go ahead. Charles T. Moore: Judge, Your Honor, sir, I have a family out there, which I've had family problems that drug me into this matter, and I would appreciate -- The Court: How does it drag you into this matter to hold up a stranger on the highway
[ 225 Pa. Super. Page 266]
the two of you, with rifles, because you had a quarrel with your wife; how does that explain or justify that? Charles T. Moore: Well, sir, Your Honor, she had been giving me trouble ever since the first part of '70; because I know what it is for a child to come up without a father, because I had to come up without one myself. And I asked my wife to be kind enough to go back, even with the words that I called her the day that these problems occurred. And like I say, I have a family out there. I love my wife. I have three children; I have three children underage at home. And I certainly would appreciate being with them. The Court: You want me to turn you loose as a result of this offense? Charles T. Moore: Sir, I have a nervous condition. I've been in the state hospital, and I've been under doctor's care the one time I been there. Actually, sir, I just can't do the time. I'll be honest with you. My nerves are gone. The Court: You should have thought about that before you did this, shouldn't you? Charles T. Moore: Sir, Your Honor, I've been nervous. Like I say, I was in the state hospital for a nervous breakdown in the first part of '70 -- in the Fall of '70."
The court directed that the guilty plea be withdrawn and noted that "Apparently, we misjudged the situation so far as the attitude of the defendant and his capacity for rehabilitation." and that "the facts disclosed before us today do not warrant the imposition of a sentence of the same type in the event that the defendant is convicted in the future." On November 20, 1972, the defendant attempted to re-enter his guilty plea and the court below refused to accept it and noted for the record: ". . . that the court will not make any commitment as to sentence and will feel free to impose the maximum sentence on each count of the indictment."
On December 26, 1972, a guilty plea was again tendered and this time accepted, but ...