No. 889 October Term, 1976, Appeal from Judgment of Sentence imposed December 30, 1975 in the Court of Common Pleas, Criminal Section, Trial Division, of Philadelphia County, at Nos. 1928, 1929 of September, 1975.
Ronald F. Kidd, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting statement in which Van der Voort, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 216]
This appeal concerns the validity of appellant's guilty pleas entered on November 10, 1975 to two indictments. Appellant, Joseph Johnson, contends that his guilty pleas were not voluntarily entered. Since appellant failed to follow the requisite procedure for the withdrawal of his guilty pleas, his appeal is not ripe for review at this time.
Appellant has made the common, but no longer condoned, mistake of attacking the validity of a guilty plea on direct appeal without first filing a petition to withdraw the plea with the court to which the plea was made. This procedural error was first pointed out by our Supreme Court in Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). In a case decided subsequent to Lee, our court made mandatory the procedure of filing a petition with the lower court for the withdrawal of a guilty plea or a plea of nolo contendere prior to appealing to this court. See Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975).
Following our decision in Roberts, this court required strict compliance with the procedural rule which we then applied. Accordingly, we held on several occasions that an appellant's failure to comply with the foregoing procedure,
[ 258 Pa. Super. Page 217]
by neglecting to first petition the lower court to withdraw the plea, constituted an automatic waiver of the right to challenge the voluntariness of the plea on direct appeal. See, Commonwealth v. Smith, 248 Pa. Super. 392, 375 A.2d 154 (1977); Commonwealth v. McCusker, 245 Pa. Super. 402, 369 A.2d 465 (1976), rev'd, Pa. (1977); and Commonwealth v. Cooke, 244 Pa. Super. 320, 368 A.2d 741 (1976).
In mitigation of the potential harshness of the "automatic" waiver rule, however, the Supreme Court in Commonwealth v. McCusker, supra, recently instituted a waiver test similar to the one employed in cases involving an appellant's failure to file post-verdict motions. Under this test, before an appellate court may find that a petitioner has effectively waived his right to assail the validity of a guilty plea on direct appeal, the record in the particular case must demonstrate that appellant knowingly and intelligently waived such right. More precisely, a finding of waiver must be based upon affirmative proof in the record that appellant had been apprised by the lower court or his counsel of the right to petition to withdraw his guilty plea, of the right to the assistance of counsel in filing such a petition, and of the consequences of not filing such a petition. Hence, in the case at hand, unless the record establishes that appellant was fully cognizant of the foregoing factors, his failure to comport with the procedure established in Roberts cannot, at this time, be treated as a voluntary and intelligent waiver of his right to challenge the validity of his guilty pleas.
In the present case, although the lower court's colloquy with appellant was extensive, at no point did it advise appellant of his right to file a petition to withdraw a guilty plea, and of the consequences of not filing such a petition. Nor does the record contain evidence that appellant's counsel warned appellant that his failure to petition the lower court to withdraw his guilty pleas would result in the forfeiture of the right to attack the validity of his pleas in a later appeal. Thus, we find it ...