No. 186 March Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered on May 24, 1977 at No. CC 7607398.
Lester G. Nauhaus, John H. Corbett, Jr., Asst. Public Defenders, for appellant.
Robert E. Colville, Dist. Atty, Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion in which O'Brien, Pomeroy, Nix and Manderino, JJ., join.
Appellant pleaded guilty to voluntary manslaughter in the death of his common-law wife, Mamie Martin. He was sentenced to a term of 2 1/2 to 10 years' imprisonment. He subsequently moved to withdraw his guilty plea. The trial judge vacated sentence pending disposal of the motion and, upon denial of the motion, reinstated the above sentence. Appellant appeals the denial of withdrawal of his guilty plea. We affirm the court below.
The withdrawal of a guilty plea is within the discretion of the trial court. Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976); Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). Where the motion is a post-sentence motion, relief will be granted only when necessary to correct manifest injustice. Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978); Commonwealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). A more liberal policy toward post-sentence withdrawals would create a "sentence testing device" for defendants. Starr, supra, 450 Pa. at 489, 301 A.2d 592. All defendants would plead guilty, view their sentence and then seek withdrawal of the guilty plea if the "odds" favored a jury trial.
Taking cognizance of the underlying theory, we find that the trial judge erroneously (although in good faith) treated this case as a pre-sentence situation. Appellant's time for appeal could have expired before the conclusion of the hearing on the motion to withdraw the plea. In order to avoid jeopardizing appellant's possible appeal to this Court, the trial judge vacated the judgment of sentence,*fn1 with the intention of reinstating the judgment if appellant's motion to withdraw failed. Thus, while the motion was filed post-sentence, once the judge "turned back the clock", he felt compelled to use the pre-sentence standard. This was error. A procedural concession made only for the purpose of preserving an opportunity to appeal should not affect the substantive test to be used on the underlying motion.
Thus, the trial court should have used the post-sentence, "manifest injustice" test. Appellant alleges that his guilty plea was not knowing and voluntary because he did not understand the import of such a plea and because he was in a state of shock from the time of the death of the victim, his common-law wife, to the time of trial. At a hearing on April 19, 1977, the trial judge found these allegations to be unsubstantiated. The record supports the court's finding that the guilty plea was, in fact, knowingly and voluntarily made.
Appellant also makes a bare, unsubstantiated allegation of "judicial coercion" at a March 9, 1977 hearing during which he reaffirmed his guilty plea. Neither the record nor his brief indicate any basis for finding coercion.
Appellant's reasons for withdrawal of his guilty plea fail to satisfy the "manifest injustice" test. Thus, had the trial judge applied this standard, he would have reached the same decision ...