Dennis V. Williams, Erie, for appellant.
Robert H. Chase, Dist. Atty., Bernard L. Siegel, 1st Asst. Dist. Atty., Erie, for appellee.
Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Jones, C. J., and Nix, J., took no part in the consideration or decision of this case. Pomeroy, J., filed a concurring opinion.
This appeal arises from an order refusing the request of appellant, James Leroy Sutton, to withdraw his guilty plea to a general charge of murder, and his subsequent conviction for first-degree murder and sentence of life imprisonment.
The sole issue presented deals with the sufficiency of the on-the-record colloquy held prior to appellant's guilty plea, as required by Pa.R.Crim.P. 319(a) and this court's decision in Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). The facts surrounding this appeal are as follows.
On August 23, 1973, appellant was arrested and charged with murder, robbery, burglary, conspiracy, and a violation of the Uniform Firearms Act in connection with the shooting of James T. Hogan during the armed robbery of Czartoryski's Cafe in Erie. On September 13, 1974, after the jury was sworn and the district attorney had completed his opening remarks, appellant entered his guilty plea to a general charge of murder, with the remaining indictments being nolle prossed by the Commonwealth, pursuant to a plea bargain. The murder indictment was clearly based upon the felony-murder rule, with appellant's felony being that of robbery. Appellant argues that the on-the-record colloquy failed to disclose the elements of the underlying felony of robbery which was the basis of the murder indictment and, therefore, the colloquy did not meet this court's requirements as enunciated in Ingram. We agree with appellant's contention.
In the instant case, the court, when detailing the degrees and elements of homicide, defined felony-murder as follows:
"THE COURT: Now, with respect to second degree murder it says a criminal homicide constitutes murder of the second degree when the death of the victim occurred while the defendant was engaged as a principal or accomplice in the perpetration of a felony. The purpose of the felony is the act of the defendant in engaging in or being an accomplice in the commission of or an attempt to commit, or flight after committing, or attempting to commit robbery, rape or devious sexual intercourse by threat or force of threat, larceny, burglary
or kidnapping. Now that is the offense of second degree murder. Do you ...