Robert B. Mozenter, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., dissents on the basis of Commonwealth v. McCusker, No. 2850 Alloc.Dkt., filed September 21, 1977. Price, J., dissents and would affirm the judgment of sentence because the voluntariness of appellant's failure to file a motion to withdraw his guilty plea is not raised. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 445]
The judgment of sentence is vacated and the case is remanded for further proceedings consistent with Commonwealth v. McCusker, Pa. (No. 2850 Allocatur Docket, Filed September 21, 1977). Upon remand the lower court must advise appellant as provided in Rule 1405(c), Pa.R.Crim.P. (added June 29, 1977, effective September 1, 1977); appellant should comply with the procedure set forth in Rule 321, Pa.R.Crim.P. See Commonwealth v. Marzik, 255 Pa. Super. , 388 A.2d 340 (1978) (concurring opinion by SPAETH, J.).