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COMMONWEALTH v. MACK (09/23/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 23, 1974.

COMMONWEALTH
v.
MACK, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 855 of 1973, in case of Commonwealth of Pennsylvania v. Daniel Nathaniel Mack, Jr.

COUNSEL

Theodore S. Danforth, Public Defender, for appellant.

Michael H. Ranck, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.

Author: Van Der Voort

[ 230 Pa. Super. Page 597]

On October 2, 1973, the Appellant, Daniel Nathaniel Mack, Jr. entered a plea of guilty to a charge of Robbery with Accomplice by Violence.*fn1 He claims that the guilty plea colloquy was deficient in two particulars:

(1) There is allegedly no showing that defendant understood the nature and elements of the charge to which he pled guilty; and

[ 230 Pa. Super. Page 598]

(2) There is allegedly no showing that the defendant understood that he was presumed innocent until proven guilty beyond a reasonable doubt.

In making both claims, appellant relies on Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). This case was decided by our Supreme Court on January 24, 1974, and we have determined that the Ingram holding is to be afforded prospective application only. See Commonwealth v. Schork, 230 Pa. Superior Ct. 411, 326 A.2d 878 (1974). We must resolve the issues presented in this case by reference to pre- Ingram decisions.

We have examined the record closely and have found that the lower court clearly explained to the appellant the factual basis for the charges against him. Appellant during the colloquy acknowledged that he and a cohort had forcefully stolen a purse containing money from a female pedestrian on the date charged in the indictment. This satisfied the requirement (in effect at the time of the plea) that the appellant have a factual understanding of the charge so as to enter a valid plea. See Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973); Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973).

The second claim of the appellant is that his plea should be voided because the presumption of innocence was not explained to him during the colloquy. We have examined the record and found that this assertion is true. Rule 319, paragraph (a) of the Pennsylvania Rules of Criminal Procedure provides that the trial court shall make an inquiry on the record to satisfy itself that the plea is ". . . voluntarily and understandingly tendered." The Comments to this Rule note that the trial court, to satisfy the requirements of the Rule, question the defendant, inter alia, on the following: "(4) Does the defendant understand that he is presumed innocent until he is found guilty?"

[ 230 Pa. Super. Page 599]

In Commonwealth v. Ingram, supra, the Supreme Court discussed in detail Rule 319 and the matters discussed above. It was pointed out that cases prior to Ingram, and the language of the Comment, merely indicated that the Comment questions and suggestions were the "preferred practice". See also Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968); Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971). However, Ingram mandated that such "preferred practice" would become the "mandatory practice" in Pennsylvania. As already noted, we have held, in Commonwealth v. Schork, supra, that Ingram is not to be afforded retroactive application. The Supreme Court specifically noted in Ingram that it had not yet voided any plea merely because the presumption of innocence was not mentioned to the defendant during the colloquy. We see no compelling reason to change that policy in the instant case in which the plea preceded Ingram. In other respects, the plea colloquy satisfied the requirements then in effect and we cannot hold that the plea was void merely for the cause argued. We find that it was properly accepted by the trial court.

Affirmed.

Disposition

Judgment of sentence affirmed.


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