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COMMONWEALTH v. VELASQUEZ (02/02/76)

SUPERIOR COURT OF PENNSYLVANIA


decided: February 2, 1976.

COMMONWEALTH
v.
VELASQUEZ, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1974, No. 1463, in case of Commonwealth of Pennsylvania v. Benjamin Velasquez.

COUNSEL

Bertram M. Felgoise, for appellant.

David Fabe Michelman, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Price, J., dissents for the reasons stated in Commonwealth v. Roberts,

Author: Cercone

[ 238 Pa. Super. Page 368]

This appeal concerns the validity of appellant's guilty plea to the charge of aggravated assault.*fn1 Appellant contends

[ 238 Pa. Super. Page 369]

    that his guilty plea is invalid because he was not informed of the nature and elements of aggravated assault at the time he entered the plea. We need not address appellant's contention at this time because appellant is not properly before this court. Appellant failed to file a petition to withdraw his guilty plea with the lower court before attacking the plea on direct appeal. See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749, 750 (1975); Commonwealth v. Zakrzewski, 460 Pa. 528, n. 1, 333 A.2d 898, n. 1 (1975); and Commonwealth v. Starr, 450 Pa. 485, 488 (1973). This procedure has been made mandatory by this court in the case of Commonwealth v. Roberts, 237 Pa. Superior Ct. 336 (1975). However, because appellant's appeal came before Commonwealth v. Roberts, supra, we will not consider his failure to file a petition to withdraw his guilty plea with the lower court as a waiver of such issue, but will instead remand to allow appellant to file a petition to withdraw his guilty plea nunc pro tunc.

Remanded with a procedendo.

Disposition

Case remanded with a procedendo.


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