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COMMONWEALTH v. BLISS (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
BLISS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, Nos. 1648, 1649, 1709, 1710, 1711, and 1754 of 1973, in case of Commonwealth of Pennsylvania v. William E. Bliss.

COUNSEL

Richard D. Walker, Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Jacobs, J., concurs in the result. Concurring Opinion by Price, J.

Author: Spaeth

[ 239 Pa. Super. Page 349]

The record in this case suggests that appellant's trial counsel and his appellate counsel may both have been incompetent. We have concluded that on the particular facts presented the best solution is to quash the appeal, with a suggestion to the lower court to appoint new counsel to represent appellant and to determine whether any further proceedings are warranted.

I

On September 12, 1973, the grand jury of Dauphin County returned six bills of indictment against appellant. Bills 1648 and 1649 charged appellant with having raped and committed sodomy on a 16-year-old-girl. Bill 1688 charged him with having raped a young woman who was in her 10th month of pregnancy. Bills 1709 and 1710 charged him with having kidnapped and committed involuntary deviate sexual intercourse upon an eight-year-old girl. Bill 1711 charged him with aggravated assault and battery of a 13-year-old girl. And Bill 1754 charged him with having indecently exposed himself to two teen-aged girls.

On September 26, 1973, appellant pleaded not guilty to all of these bills, and on January 31, 1974, the bills were called for trial.

After summarizing the charges, the Deputy District Attorney stated to the court that on Bill 1711 the Commonwealth wished to move to dismiss the charge of aggravated assault and battery and instead to charge only simple assault. The district attorney went on to state that it was his understanding that appellant would then plead guilty to all of the bills.

Appellant was represented by counsel from the Dauphin County Public Defender's office. Counsel stated that appellant did "agree to plead guilty to the charges with one exception. A question was raised concerning No. 1710 . . . ." When the court asked what the question was, the following colloquy ensued:

[ 239 Pa. Super. Page 350]

"MR. GOOD: Under the law of the definition of kidnapping is a person doing a kidnapping is the unlawful removing of another a substantial distance or a substantial period. [ Sic ] The definition of what's substantial under this new code has not specifically been defined and the distance we do not feel was a substantial distance.

THE COURT: What section is that?

MR. GOOD: 2901, Your Honor. It involves another charge which Mr. Bliss is pleading guilty to and at my insistence it's connected with the involuntary sexual deviate intercourse.

THE COURT: Which is what?

MR. GOOD: Which he is pleading guilty to out of the same incident, and there is also a kidnapping charge involved in there.

MR. DISSINGER: Your Honor, very briefly, the facts I think will reveal the young girl upon whom the involuntary sexual deviate intercourse was performed was taken from her bicycle into the car of the defendant and transported approximately a mile.

THE COURT: All right. Well, we are not going to argue that right now. Is your client going to plead guilty to that or not guilty to the kidnapping charge? You have to make a decision.

MR. GOOD: We will plead not guilty and waive jury trial and let you decide it at this point.

THE COURT: I'm going to conduct the colloquy with the defendant." (NT 3-4.)*fn1

[ 239 Pa. Super. Page 351]

After this colloquy, the court accepted appellant's pleas of guilty and his waiver of a jury trial on the kidnapping charge, and heard testimony. Generally, the procedure followed was that the investigating officer assigned to the particular case testified as to what had happened, with the victim confining her testimony to identifying appellant as the person who had attacked her; on Bill 1711, the assault charge, the victim described the incident. In addition, a confession was admitted into evidence. Appellant did not testify. The only witness called by his counsel was one of the investigating officers, who testified that when confessing, appellant had "impressed me with the fact that he was very, very truthful." This officer also agreed with appellant's counsel that appellant had "express[ed] the desire that he did need help and wished to obtain it."

Upon conclusion of the testimony, the court revoked bail and ordered a presentence report. When the district attorney reminded the court the "one outstanding matter is the indictment to the kidnapping charge," the court stated:

"THE COURT: Well, I feel that the defendant is guilty of that charge, and I so find him. It seems to me that he did take [the child] a substantial distance to facilitate the ...


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