Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, No. 703, in case of Commonwealth of Pennsylvania v. Donielver Ingram.
Joseph R. Danella, for appellant.
Mark Sendrow and David Richman, 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. Chief Justice Jones. Mr. Justice Pomeroy concurs in the result.
The only questions presented by this appeal relate to appellant's charge that the on-the-record colloquy prior to his guilty plea was deficient under the requirements of Rule 319(a) of the Pennsylvania Rules of Criminal Procedure. The relevant facts are as follows:
On June 18, 1971, appellant pleaded guilty to an indictment charging him with the murder of one Betty Jean Jenkins. Following a degree of guilt hearing, appellant was found guilty of second degree murder and on September 13, 1971, was sentenced to a term of five to twenty years imprisonment. This appeal is from that judgment of sentence.
Appellant initially argues that the pre-plea colloquy in this case did not comply with the requirements of
Rule 319 since the inquiry was conducted by the district attorney in the judge's presence and not by the judge himself. This contention is without merit. Rule 319, paragraph "(a)" reads as follows: "(a) Generally. A defendant may plead not guilty, guilty, or with the consent of the court, nolo contendere. The judge may refuse to accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record." Nothing in the rule or the comments indicates that the judge himself must personally examine the defendant. On the contrary, the comments to paragraph (a) of Rule 319 explicitly state that a judge-conducted examination is not required: "It is advisable that the judge should conduct the examination of the defendant. However, Paragraph (a) does not prevent defense counsel or the attorney for the Commonwealth from conducting part or all of the examination of the defendant, as permitted by the judge. . . ." (Emphasis added.) Moreover, we have recently noted our approval of this comment by upholding a colloquy which was conducted by defense counsel in the judge's presence. See Commonwealth v. Maddox, 450 Pa. 406, 409 n. 3, 300 A.2d 503 (1973); see also Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 106 n. 5, 237 A.2d 196, 198 n. 5 (1968). The importance of the colloquy is to demonstrate that defendant's action is taken voluntarily and intelligently. This examination need not be performed by the court alone. Either defense counsel or the district attorney may conduct the necessary questioning, if in the presence of the court, to its satisfaction, and on the record. The essential element is therefore a recorded demonstration that the defendant is fully aware of the ramifications of his action and is entering his plea voluntarily.
Appellant's other contention is that the pre-plea examination was deficient since it failed to elicit the information required under Rule 319. Specifically, it is
charged that the colloquy failed to establish (1) that there was a factual basis for the plea, (2) that appellant understood the nature of the charges to which he pleaded guilty and (3) that appellant understood that he is presumed innocent until proven guilty. The questions thus presented are whether the above allegations are ...