Barnett S. Lotstein, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and O'Brien, JJ., concurred in the result.
Appellant, Andre Huett, was tried non-jury on February 1, 1973, on charges of murder and carrying firearms
on public streets. At the close of the prosecution's case, appellant sought leave to enter a guilty plea to the charges of possession of a firearm and voluntary manslaughter. The trial court refused to accept the guilty plea, and the defense then presented evidence. After presentation of evidence and oral argument, the notes of testimony indicate that the trial judge orally announced that he found the defendant guilty of carrying firearms and of murder in the second degree. The verdicts recorded and signed by the trial judge on the indictment, however, were guilty of carrying firearms and of voluntary manslaughter. Sentencing was deferred pending the filing of post-verdict motions and submission of presentence and psychiatric reports.
Thereafter, the trial judge was temporarily relieved of his judicial responsibilities for reasons not relevant to this appeal, and another judge was assigned to hear the post-verdict motions and, if necessary, to impose sentence.
On August 7, 1973, the matter was convened before the substitute judge, who reviewed the history of the case orally in the presence of the appellant, his counsel, and the prosecutor. During this review, the substitute judge noted that at trial appellant's "motion for a plea of guilty to voluntary manslaughter was denied. However, the [trial judge] adjudicated the [appellant] guilty of voluntary manslaughter." The prosecutor, who was the same prosecutor who had earlier tried the case, said nothing at this point. There followed a discussion, during which defense counsel objected that the trial judge, and not the substitute judge, should consider post-verdict motions. A conference then took place in chambers. After this conference, on the record, in open court defense counsel stated that the defense was prepared to withdraw its post-verdict motions. The appellant then took the stand and a colloquy occurred between defense counsel and the appellant in order to determine that the
appellant was knowingly, intelligently and voluntarily agreeing to withdraw the post-verdict motions and be sentenced immediately by the substitute judge. During the colloquy, defense counsel asked the following question of the appellant:
"And you're aware now that your trial is over and you've been found guilty of voluntary manslaughter and that you have a right to have motions filed in your behalf for a new trial or in arrest of ...