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COMMONWEALTH PENNSYLVANIA v. DANIEL J. MCCUSKER (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL J. MCCUSKER, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas of Huntingdon County at No. 175 Criminal Action, 1975. No. 1154 October Term, 1976.

COUNSEL

Joseph W. Mullin, Public Defender, Huntingdon, for appellant.

Stewart L. Kurtz, II, Huntingdon, for appellee.

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

Author: Hoffman

[ 245 Pa. Super. Page 403]

Appellant seeks to challenge for the first time on appeal the adequacy of the colloquy prior to his plea of nolo contendere to the charges of aggravated assault*fn1 and resisting arrest.*fn2

On August 30, 1975, at approximately 1:30 a. m., appellant entered the Huntingdon Borough police station to report the theft of his automobile. Subsequent investigation by the police revealed that appellant's vehicle had been involved in a hit-and-run accident. The officer on duty informed appellant that he would probably be arrested and charged with failure to stop at the scene of an accident.*fn3 A scuffle ensued, and appellant injured two officers before he was subdued. The testimony of the officers during appellant's plea colloquy on December 10, 1975, indicated that appellant might have been intoxicated on the night in question. Nevertheless, the court below accepted appellant's plea of nolo contendere; and, on February 5, 1976, it sentenced appellant to serve 2 to 4 years' imprisonment. Appellant did not petition the lower court for permission to withdraw his plea, but rather, appealed directly to this Court.

Appellant has made the common mistake of attacking the validity of his plea on direct appeal without first filing a petition to withdraw the plea with the lower court to which the plea was made. See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). In Commonwealth v. Roberts, supra, this Court mandated strict compliance with the requirement that the appellant file a petition to withdraw. For appeals filed prior to the filing date of Roberts, December 1, 1975, this Court

[ 245 Pa. Super. Page 404]

    has generally remanded cases involving challenges to guilty pleas to permit appellants an opportunity to file a petition to withdraw.

This appeal was filed on March 5, 1976. Because appellant has not filed a petition to withdraw with the lower court and because this appeal was filed well beyond the effective date of the rule announced in Roberts, we must hold that appellant has waived his right to raise issues in this Court which have not been presented to the court below. Cf. Commonwealth v. Reid, 458 Pa. 357, 358, 326 A.2d 267 (1974).

Judgment of sentence ...


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