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decided: November 22, 1976.


Appeal from the denial of the Post Conviction Petition to No. 1491 and 1491-A of 1973 in the Court of Common Pleas of Luzerne County, Criminal Division. No. 245 October Term, 1975.


Francis P. Burns, Assistant Public Defender, Wilkes-Barre, for appellant.

Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Price, J., concur in the result. Van der Voort, J., files a concurring and dissenting opinion in which Hoffman, J., joins.

Author: Spaeth

[ 246 Pa. Super. Page 328]

This is an appeal from the denial of a Post Conviction Hearing Act*fn1 petition requesting a new trial and permission to withdraw a guilty plea on the grounds that the plea was unlawfully induced and that appellant was denied effective assistance of counsel.*fn2 We reverse and remand for further proceedings in accordance with the instructions set forth below.

We very much regret the necessity of such an order. The case presents no novel or difficult issue; it should have been routinely and expeditiously disposed of long ago. Instead, appellant was ineffectively represented by counsel at every stage of the proceedings, including this appeal; the lower court committed clear error;*fn3 and the Commonwealth manifested its indifference to the administration of criminal justice by its failure to file any appellate brief.*fn4

It is distressing to make these remarks, the more so as they may be read as implying that we think the conduct of our own business beyond criticism; we know it is not.

[ 246 Pa. Super. Page 329]

Nevertheless, we must all do better. Sometimes those who call for efficiency want it at the expense of individual rights (at least they do unless perchance they are accused of crime). That sort of efficiency is tyranny; and when settled principle and orderly procedure are ignored, tyranny results. That is why we speak so harshly.

I. History of the Case

On January 15, 1974, appellant appeared before President Judge BROMINSKI of Luzerne County, and pleaded guilty to the crime of possessing heroin with intent to deliver. A petition to withdraw the plea was filed on January 22, 1974, by appellant's counsel, the first of a line of assistant public defenders to represent appellant. After a hearing on January 30, the President Judge granted the petition because appellant's counsel had ignored appellant's request that he file a pre-trial suppression motion challenging the validity of the search warrant pursuant to which the heroin was found. In such circumstances, as the President Judge correctly stated in his opinion, "a judicial determination of the validity of the search warrant should be considered."

At the time, appellant was in the Lackawanna County jail. He claims he wrote to the public defender of Luzerne County and requested that the suppression motion be filed, but that the defender never responded. In any event, no motion was filed.

On February 19, 1974, appellant was again brought to the Luzerne County court. At his PCHA hearing he testified that he thought he had been brought there for a suppression hearing. When he arrived, however, he learned for the first time that he was being represented by a second assistant public defender, that no suppression motion had been filed, and that his purpose for being there was to stand trial. Before the court proceedings

[ 246 Pa. Super. Page 330]

    began, appellant, his wife,*fn5 and their respective counsel met privately with the district attorney and the prosecuting police officer. Appellant again informed his counsel that he wished to have a suppression hearing. According to appellant, the district attorney warned him of the consequences of this,*fn6 and his own counsel refused to file the requested motion.*fn7 Thereupon, appellant yielded and agreed to plead guilty again.

At the beginning of this second guilty plea hearing, the district attorney recommended to the court, in accordance with an agreement made with counsel for appellant and his wife, that appellant and his wife not be sentenced until they had been sentenced on charges of which they had been convicted in Lackawanna County. The purpose of this was apparently to leave open the opportunity for concurrent sentences.

The court then conducted the guilty plea colloquy. The portion of the colloquy dealing with the nature of appellant's offense consisted entirely of the following:

BY THE COURT: To Mr. and Mrs. Felder. Do you both understand that you have been charged with the crime of possession of a controlled substance with intent to deliver? Mr. Felder?


BY THE COURT: All right. Do you know the meaning of this charge?

[ 246 Pa. Super. Page 331]


Defense counsel neither participated in nor objected to the colloquy.

Before the Commonwealth presented evidence to establish the factual basis of the plea, the following exchange regarding the suppression motion occurred:

MR. MUROSKI [district attorney]: One of the reasons that Judge Brominski allowed Mr. and Mrs. Felder to withdraw their previous guilty plea, sir, was to afford them the opportunity of pursuing a motion to suppress the search warrant in the case. I have that search warrant in front of ...

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