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COMMONWEALTH v. KAMENCA (04/03/74)

decided: April 3, 1974.

COMMONWEALTH
v.
KAMENCA, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Cambria County, Sept. T., 1971, Nos. C-121, 122, 123, 124, 125, and 126, in case of Commonwealth of Pennsylvania v. Alexander Kamenca.

COUNSEL

Russell J. Heiple, and Myron I. Markovitz, for appellant.

Caram J. Abood, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.

Author: Jacobs

[ 226 Pa. Super. Page 550]

This case presents the issue of whether the lower court committed an abuse of discretion in refusing appellant's presentence request to withdraw certain guilty pleas. We hold that it did not and affirm.

Appellant was indicted for three 1971 armed robberies committed at banks in Johnstown, Pennsylvania, and for three attendant larcenies. Prior to acceptance of guilty pleas as to the six crimes, the lower court conducted an extensive hearing on December 8, 1971. At the hearing, it was developed that appellant was a 29-year-old Czechoslovakian citizen, that his European educational background was that of an electronics engineer, and that no plea bargain was involved in the case. Appellant stated that his pleas were made because of his guilt, that he had no defense, that he understood the charges against him, and that his decision to plead guilty was of his own free will. He acknowledged his understanding of the forfeiture of certain described rights by reason of a plea of guilty, and asserted his comprehension of the maximum penalties involved. An interpreter was present for the purpose of obviating any language difficulties, and appellant was represented by counsel.

The lower court accepted the pleas. A police officer then stated that the appellant had been apprehended following a chase from the most recent robbery and had made a "full and relatively honest statement about what went on." Imposition of sentence was deferred pending a presentence investigation and report.

Sentencing was scheduled on April 24, 1972. At that time the court was informed that appellant intended to move to withdraw his pleas. On May 2, 1972, an oral motion to that effect was made on behalf of appellant and a hearing was held.

At the hearing, appellant's attorney stated that the basis of the withdrawal request was that appellant had

[ 226 Pa. Super. Page 551]

    not been informed of all the rights available to him, and had not made intelligent and voluntary pleas. Appellant testified that he had entered the United States on January 6, 1969, at which time he did not have a command of the English language. He stated that he had pleaded guilty to federal charges related to his state offenses with the understanding that a deportation and suspension might be the result; that the attorney representing him when his guilty pleas were entered in the present case*fn1 had threatened to stay out of the courtroom if he did not plead guilty; that he had been beaten after his arrest; and that without notification to him FBI agents had searched his apartment and seized certain evidence. He said that he had been in a state of fear at the time his pleas were entered, that the Czechoslovakian criminal system had intimidated him, that he did not understand some of the court's questions in the prior hearing, and that the interpreter therein had been so incompetent as to preclude his using her services. Although he denied his guilt "from point of humanity," he conceded a "certain type" of guilt, maintaining that he was a "victim of circumstances." At one point he expressed a desire to inform the people in the courtroom of the "desperate situation" which "forced [him] to do it." At another point, he stated, "Yes, I am guilty," but alluded to certain circumstances, including blackmail, of which he said he was a victim.

The attorney who represented appellant at the time of entry of the guilty pleas testified that he had told the appellant that he would not argue two particular defenses, which he did not name, to the jury, unless ordered to do so by the judge. He said that he regarded the defenses as improper. He ...


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