No. 169 March Term, 1977, Appeal in a felonious homicide case from the sentence entered on May 2, 1977, by the Honorable John F. Henderson, President Judge, of the Court of Common Pleas of Lawrence County, Pennsylvania, Criminal Division, at No. 151 of 1977.
Joseph V. Bullano, Court-appointed, New Castle, for appellant.
James C. Blackman, Asst. Dist. Atty., Warren, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, Pomeroy, Nix and Manderino, JJ., concur in the result. Roberts, J., filed a dissenting opinion.
On February 28, 1977, the trial of appellant Charles Whelan and his co-defendant, Harry S. Anderson, commenced. Appellant and his co-defendant were charged with criminal homicide. On March 7, 1977, after the Commonwealth placed its case in chief into evidence and after appellant and his co-defendant placed their cases into evidence, appellant pleaded guilty to the charge of being an accessory to murder. After conducting a colloquy with appellant to ascertain whether the guilty plea was made knowingly and voluntarily, the trial judge accepted appellant's guilty plea. Appellant was represented by counsel at all the proceedings.
The trial of appellant's co-defendant continued and the jury returned a verdict of not guilty as to him. On April 1, 1977, appellant filed a motion requesting permission to withdraw his guilty plea; appellant claimed that he was "less implicated" by the evidence than was his co-defendant (who was acquitted) and, therefore, "in the name of fairness", he should be permitted to withdraw his guilty plea. After holding a hearing, the trial court denied the motion and on May 2, 1977, appellant was sentenced.*fn1
Appellant's first contention is that the trial court erred in accepting his guilty plea because (appellant claims) the plea was not entered in an "intelligent, understandable, and voluntary manner". This argument is without merit. Before the trial judge accepted appellant's guilty plea, the trial judge conducted a colloquy*fn2 with appellant in which
the trial judge explained: 1) the elements of the crime which appellant pleaded guilty to; 2) the punishment which appellant could be subjected to as a result of the guilty plea; 3) the terms of the plea -- namely, that as a result of pleading guilty to being an accessory to the crime of the murder, the Commonwealth would not prosecute appellant as a principal in the crime of murder; and 4) that if appellant did not plead guilty, he would be presumed innocent until proven guilty and that he would be entitled to a trial by jury.*fn3 Appellant stated that he understood the trial judge's explanations. Additionally, appellant stated that his plea was voluntary and that he was not subjected to threats, force or coercion. Upon a review of the record, we find that the record supports the trial judge's finding that appellant's plea of guilty was tendered in a voluntary and understanding manner.
Appellant's second contention is that the trial court erred in denying appellant's request to withdraw his guilty plea. Pennsylvania Rule of Criminal Procedure 320 provides that "at any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted." This Court held in Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976) that "the crucial factor in determining whether to ...