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COMMONWEALTH PENNSYLVANIA v. MICHAEL MARZIK (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL MARZIK, APPELLANT



Appeal No. 2176 October Term, 1976, from Judgment of Sentence of the Court of Common Pleas, Luzerne County, Criminal Section, at Nos. 559, 560-A, 561 and 562 of 1976; DALESSANDRO, Judge.

COUNSEL

Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.

William J. Perrone, First Assistant District Attorney, Norristown, for the Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Jacobs and Hoffman, JJ., join. Price, J., files a dissenting opinion. Van der Voort, J., dissents and would remand to the lower court for a determination of whether appellant knowingly and intelligently waived his right to file post trial motions. Commonwealth v. Schroth, Author: Per Curiam

[ 255 Pa. Super. Page 501]

The judgment of sentence is vacated and the case is remanded for further proceedings consistent with Commonwealth v. McCusker, 245 Pa. Super. 402, 369 A.2d 465 (1976) (Dissenting Opinion by Spaeth, J.), rev'd Pa. (No. 2850 Alloc.Dkt., Filed September 21, 1977).

SPAETH, Judge, concurring:

I agree that this case must be remanded to the lower court for further proceedings consistent with the Supreme Court's per curiam order in Commonwealth v. McCusker, Pa. (No. 2850 Allocatur Docket, filed Sept. 21, 1977). However, I do not interpret that order as adopting the specific disposition recommended in my dissenting opinion

[ 255 Pa. Super. Page 502]

    in Commonwealth v. McCusker, 245 Pa. Super. 402, 369 A.2d 465, 466 (1976) (WATKINS, P. J., joining).

In McCusker a majority of this court held that because appellant had failed to file in the lower court a petition to withdraw his plea of nolo contendere, as required by Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975), he had waived his right to attack the validity of his plea on appeal. Appellant's judgment of sentence was therefore affirmed. In my dissenting opinion I argued that we should have remanded with leave to appellant to file a petition to withdraw his plea.

On appellant's petition for allocatur, the Supreme Court on September 21, 1977, entered the following per curiam order:

The record in the instant case reveals that appellant, Daniel J. McCusker, was not informed of his right to file post-verdict motions following the acceptance of his plea of nolo-contendere.

Therefore, judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc. See Pa.R.Crim.P. 1123(a), (b) and (c); Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975). Following disposition of said motions by the ...


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