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decided: March 29, 1978.



Marilyn C. Zilli, Asst. Public Defender, for appellant.

Marion E. MacIntyre, Second Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., dissents.

Author: Per Curiam

[ 477 Pa. Page 514]


Petition for allocatur granted,*fn1 judgment of the Superior Court reversed and case remanded to the Court of Common Pleas of Dauphin County for trial.

Appellant was arrested January 12, 1976, and charged with burglary and resisting arrest. On April 29, 1976, the date set for trial, appellant expressed his desire to plead guilty to both charges. Following an on-the-record colloquy, the court accepted the pleas, directed appellant to pay costs and restitution and imposed a sentence of four to fifteen years imprisonment on the burglary charge and a consecutive sentence of one to two years imprisonment for resisting arrest. Appellant thereupon took a pro se appeal to the Superior Court. Pursuant to appellant's petition to remand to the trial court, the Superior Court remanded the case on August 5, 1976, for consideration of appellant's petition to withdraw his guilty pleas as if timely filed. The trial court denied appellant permission to withdraw his guilty pleas and the Superior Court affirmed. Appellant then sought allowance of appeal.

It is undisputed that appellant was not informed at the guilty plea colloquy of the constitutional presumption of innocence. This omission was clearly contrary to Pa.R.Crim.P. 319 and the Comment thereto*fn2 and the cases of this

[ 477 Pa. Page 515]

Court holding that the requirements of the rule are mandatory in all cases and that "(f)ailure to satisfy these minimal requirements will result in reversal." Commonwealth v. Dilbeck, 466 Pa. 543, 547, 353 A.2d 824, 827 (1976). In Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), Mr. Justice O'Brien, writing for a unanimous Court, relied upon Dilbeck in reversing the appellant's judgment of sentence and remanding for trial where the trial court failed to inform appellant during the on-the-record guilty plea colloquy of the presumption of innocence.*fn3

The Commonwealth asserts that this defect may be cured by referring to the colloquy at appellant's arraignment, where the presumption of innocence was mentioned. This contention must be rejected. In Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978) and Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978), this Court rejected similar contentions that the trial court could look outside the record of the guilty plea hearing and held that there must be an adequate on-the-record guilty plea colloquy establishing a knowing and intelligent waiver. It is an obvious and necessary corollary to this rule that the colloquy occur at the time the waiver is made. To hold otherwise would not fulfill the purpose of Rule 319 of assuring that the defendant knows

[ 477 Pa. Page 516]

    the elements of his right to stand trial and the consequences of waiving these rights at the time at which he waives them.

Appellant's presumption of innocence could not be waived until he entered a valid guilty plea. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (courts must indulge every reasonable presumption against waiver of constitutional rights and cannot presume acquiescence in the loss of fundamental rights) and Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978) (the burden of proving by a preponderance of the evidence that a waiver of a constitutional right was knowing, voluntary and intelligent rests upon the Commonwealth). It was, therefore, the duty of the trial court to determine during the guilty plea colloquy that this waiver was knowing and voluntary. Since the court did not make this determination appellant must be allowed to withdraw his guilty plea.*fn4

Judgment of sentence reversed and case remanded for a new trial.

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