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COMMONWEALTH v. ROBERTS (12/01/75)

decided: December 1, 1975.

COMMONWEALTH
v.
ROBERTS, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas of Delaware County, Dec. T., 1974, Nos. 431, 674, 1688, 1689, and 1690, and May T., 1974, No. 750, in case of Commonwealth of Pennsylvania v. George Roberts.

COUNSEL

David E. Auerbach, Assistant Public Defender, and Kenneth P. Barrow, Public Defender, for appellant.

Ralph B. D'Iorio and Vram Nedurian, Jr., Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Price, J. Jacobs, J., joins in this dissenting opinion.

Author: Cercone

[ 237 Pa. Super. Page 337]

This appeal concerns the validity of appellant's guilty pleas to four separate indictments. Appellant contends that his guilty pleas were not voluntarily and under-standingly entered because the colloquies conducted prior to the court's acceptance of his pleas were inadequate in that they failed to advise him of various rights. See Commonwealth v. Ingram, 455 Pa. 198 (1974); Pa. R. Crim. P. Rule 319 (a) and comments thereto. We need not address appellant's contention at this time because appellant is not properly before this court.

Appellant has made the common, and up to now condoned, mistake of attacking the validity of a guilty plea on direct appeal without first filing a petition to withdraw the plea with the court to which the plea was made. This procedural error was pointed out by Justice Pomeroy in Commonwealth v. Lee, 460 Pa. 324, 327, 333 A.2d 749, 750 (1975) wherein he stated:

[ 237 Pa. Super. Page 338]

"This appeal was not preceded by the filing of a petition for withdrawal of the guilty plea nor by post-trial motions. We reiterate that, in cases such as the one at bar where the only challenge to the proceedings in the trial court is directed to the validity of the guilty plea itself, the proper procedure is first to file with that court a petition to withdraw the plea. See Commonwealth v. Zakrzewski, 460 Pa. 528, n. 1, 333 A.2d 898, n. 1, [filed March 18, 1975]; Commonwealth v. Starr, 450 Pa. 485, 488, 301 A.2d 592, 594 (1973). It is for the court which accepted the plea to consider and correct, in the first instance, any error which may have been committed."*fn1

The purpose behind this procedure can best be illustrated by looking to the area of post-verdict motions. See Pa. R. Crim. P., Rule 1123 and comments thereto. Pennsylvania appellate courts have recently taken the uncompromising position that when an issue is not raised in post-verdict motions it will not be considered on appeal. See Commonwealth v. Coleman, 458 Pa. 324 (1974); Commonwealth v. Williams, 458 Pa. 319 (1974); and, Commonwealth v. Miller, 232 Pa. Superior Ct. 171 (1975). The reason for this position is that "[t]he swift and orderly administration of criminal justice requires that lower courts be given the opportunity to rectify their errors before they are considered on appeal." Commonwealth v. Reid, 458 Pa. 357, 358 (1974).

The same principles which mandate that issues not raised in post-verdict motions will not be considered on

[ 237 Pa. Super. Page 339]

    direct appeal mandate that an attack on a guilty plea on direct appeal must be preceded by the filing of a petition to withdraw such plea with the court below. The enforcement of this procedure will give the court which accepted the plea the opportunity to allow the withdrawal of the plea if it was in fact not voluntarily and understandingly made. If the defendant remains unsatisfied with the lower court's disposition of his petition to withdraw his guilty plea, then at that point the issue would be properly preserved and ripe for ...


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