John E. Good, Jr., Philip D. Freedman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. Atty., Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Manderino, J., filed a dissenting opinion.
On September 16, 1973, Billy Gene Riggins, appellant, Roy Brown, Paulette Chroughter and Kermitt Brown (the deceased), participated in a robbery of the Nationwide Inn located in the City of Harrisburg. After the conspirators had fled from the scene, an argument developed pertaining to the division of the proceeds of the robbery. During this argument, appellant caused the death of the decedent, Kermitt Brown. On January 14, 1974, the date scheduled for trial, appellant appeared and entered a plea of guilty to the indictment charging robbery. Sentencing under this indictment was deferred pending the disposition of the outstanding murder indictment against Riggins. Trial for the murder indictment was thereupon continued to a later date at the request of the prosecution. On March 18, 1974, appellant
entered a plea of guilty, before another judge, to the charge of murder generally pursuant to a plea bargain. The Commonwealth certified to the court that the crime rose no higher than murder of the second degree and also recommended that the sentence to be imposed under the murder bill should be made to run concurrently with whatever sentence was to be imposed under the robbery bill. After hearing the evidence, the court determined the degree of guilt to be murder of the second degree and sentenced Riggins, under the murder bill, to serve a term of imprisonment of not less than five nor more than ten years. Thereafter, the judge who accepted the plea of guilty to the robbery indictment sentenced appellant to serve a term of imprisonment of three to ten years, said sentence to run consecutively with the murder sentence.
The single issue raised in this appeal is whether Riggins should have been permitted to withdraw his plea to the robbery charge when the judge in imposing the sentence under the robbery indictment made the term of imprisonment run consecutively with the sentence that had been imposed under the murder indictment.*fn1 Appellant relies for support for his position on our Pennsylvania Rule of Criminal Procedure 319(b)(3).*fn2 We find this argument to be
without merit and therefore affirm the judgments of sentence.
It is to be noted that the entry of the plea under the robbery indictment was an unconditional one and was not a product of any type of plea bargaining.*fn3 If in fact the plea bargaining agreement which resulted in the entry of the plea to the murder indictment had been violated, the remedy available to appellant under Rule 319(b)(3) would have been a withdrawal of the plea under that indictment and would not require the disturbance of the sentence imposed under the robbery bill. As heretofore noted, appellant is not presently requesting that the plea under the murder indictment be withdrawn but rather seeks to challenge the validity of the plea under the robbery bill. Obviously, ...