decided: November 3, 1978.
COMMONWEALTH OF PENNSYLVANIA
WILLIS HEEMAN, APPELLANT
No. 1310 October Term, 1977, Appeal from the Judgment of Sentence imposed on February 23, 1977, by the Court of Common Pleas of Luzerne County, Criminal Division at No. 2438, 2438 A, 1976.
Bruce S. Miller, Assistant Public Defender, Hazleton, for appellant.
Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Cercone, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 80]
Appellant pleaded guilty to charges of corruption of a minor*fn1 and criminal conspiracy*fn2 on December 2, 1976. Following sentencing, appellant filed a direct appeal to this court challenging the voluntariness of his plea and the adequacy of the colloquy.
[ 260 Pa. Super. Page 81]
Appellant entered his guilty plea well after our decision in Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). Appellant failed, however, to comport with the Roberts mandate that prior to attacking a guilty plea on appeal, one must petition the lower court for permission to withdraw the plea. Appellant has asserted no valid explanation for his failure to comply with Roberts ; the issue of the plea's validity is thus waived. Commonwealth v. George Allen Hughes, 257 Pa. Super. 258, 390 A.2d 811 (1978).*fn3
Judgment of sentence affirmed.
SPAETH, Judge, dissenting:
In Commonwealth v. McCusker, 245 Pa. Super. 402, 369 A.2d 465 (1976), a majority of this court held that if a defendant fails to file in the lower court a petition to withdraw his plea, as required by Commonwealth v. Roberts, 237 Pa. 336, 352 A.2d 140 (1975), he waives his right to attack the validity of his plea on appeal. Here, the majority opinion reiterates that statement.
The reiteration is unprincipled, for two reasons. The first reason is that on petition for allocatur the Supreme Court reversed the holding of this court in McCusker. Commonwealth v. McCusker, 485 Pa. 313, 402 A.2d 500 (1977). The second reason is that we have recognized, and have followed (as, of course, we must), the Supreme Court's decision in McCusker. Commonwealth v. Marzik, 255 Pa. Super. 500, 388 A.2d 340 (1978). See also Commonwealth v. Curry, 254 Pa. Super. 444, 386 A.2d 32 (1978). But see Commonwealth v. Hughes, 257 Pa. Super. 258, 390 A.2d 811 (1978). (It is an
[ 260 Pa. Super. Page 82]
occasion for some surprise that in its opinion here the majority does not cite either McCusker or Marzik.)
The judgment of sentence should be vacated and the case remanded for further proceedings consistent with the decisions of the Supreme Court in Commonwealth v. McCusker, supra, and of this court in Commonwealth v. Marzik, supra, and Commonwealth v. Curry, supra.