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COMMONWEALTH v. MCKEE (12/11/73)

decided: December 11, 1973.

COMMONWEALTH
v.
MCKEE, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1966, No. 677, in case of Commonwealth of Pennsylvania v. Leonard McKee.

COUNSEL

Thomas Branca and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 226 Pa. Super. Page 197]

On an afternoon in July of 1966, two police officers, according to their report, were patrolling Vine Street in Philadelphia when they observed the complainant

[ 226 Pa. Super. Page 198]

    with his arms raised above his head, and another male, later identified as the appellant, standing in front of him outside of a service station. When the officers drove into the station the appellant fled. At this time the complainant informed the officers that the appellant had a gun and had attempted to rob him of his money. The police then pursued the appellant and apprehended him not far from the scene of the crime. Following a "pat-down" of the appellant the police found a blue steel starting pistol nearby.

At his arraignment the appellant pleaded not guilty, but, after several continuances caused by the failure of the complaining witness to appear, he subsequently entered a plea of guilty voluntarily upon the advice of counsel. A plea bargain had been negotiated whereby the prosecution promised to recommend a sentence of three years' probation. At the trial the plea was entered and the prosecution made its promised recommendation, but added that it was only in view of the fact that complainant was not there. The court was reluctant to accept the recommendation without a pre-sentence investigation because a gun had been used in the robbery. The prosecuting attorney then said that she would have recommended three to ten years but for the fact that the complainant was unavailable. At the sentencing hearing, neither the defense counsel nor the prosecution reminded the judge that there had been a recommendation of three years probation. The judge set sentence at 229 days to five years with a recommendation for prompt parole. The defendant is currently on parole and brings this appeal from a denial of his petition under the Post Conviction Hearing Act, 19 P.S. ยง 1180 et seq. (Supp. 1973).

The appellant first argues that the failure of both the prosecution and defense counsel to call the recommendation to the sentencing judge's attention constituted both a breach of the plea bargain by the prosecution

[ 226 Pa. Super. Page 199]

    and a denial of effective assistance by defense counsel.

It is now well recognized that plea bargaining is a vital aide to the effectuation of criminal justice. See Santobello v. New York, 404 U.S. 257, 261 (1971); Commonwealth v. Wilkins, 442 Pa. 524, 531 (1971); Commonwealth v. Alvarado, 442 Pa. 516, 520 (1971); Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 347 (1966). However, because this is such a vital part of criminal justice, and necessarily involves a waiver of a host of constitutional rights guaranteed to the accused, the process of plea bargaining must be subject to "standardization and review as is the rest of our criminal justice system." Commonwealth v. Wilkins, supra. See also Santobello v. New York, supra. Hence, it is now well settled that if the prosecution breached its promise to make or refrain from making a recommendation, the court must allow the defendant to withdraw his guilty plea and plead anew, Commonwealth v. Wilkins, supra, or, in a proper case, receive specific enforcement of the promise, Commonwealth v. Alvarado, supra. In his appeal, the appellant asserts that the ...


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