No. 275 March Term, 1977, Appeal from the November 16, 1977 Judgment of Sentence of the Court of Common Pleas of Erie County, Pennsylvania, Criminal Division, at No. 879 of 1977
Michael R. Cauley, Asst. Public Defender, Erie, for appellant.
Robert H. Chase, Dist. Atty., Frank J. Scutella, Asst. Dist. Atty., Erie, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., filed a dissenting opinion. Pomeroy and Larsen, JJ., dissent.
On September 12, 1977, appellant, Bruce E. Ward, pleaded guilty before the Court of Common Pleas of Erie County to a charge of murder. Pursuant to Pennsylvania Rule of
Criminal Procedure 352(a), the prosecution certified to the court that the degree of guilt of the homicide charge rose no higher than murder in the second degree. Additionally, the prosecution agreed, subject to court approval, to dismiss the information charging appellant with rape, and to nolle pros informations charging appellant with various counts of theft and criminal trespass.
On November 1 and 3, 1977, testimony as to the degree of guilt was heard, and on November 16, 1977, the court rendered a verdict of guilty of murder in the second degree and imposed sentence of life imprisonment. Immediately following imposition of sentence, appellant's trial counsel presented a "Petition to Withdraw Guilty Plea/Reconsider Degree of Guilt" on appellant's behalf. That petition was refused by the Court without a hearing.
Two days later, on November 18, 1977, appellant's trial counsel was granted leave to withdraw and present counsel was appointed to represent appellant on appeal.
Appellant now argues, as he did in the petition filed with the court below, that the evidence adduced at the degree of guilt hearing was insufficient to sustain the trial court's finding of guilt of murder in the second degree, but was sufficient to convict only of murder in the third degree. Appellant now argues that the on-the-record guilty plea colloquy conducted prior to the court's acceptance of appellant's plea of guilty to the charge of murder was deficient for failing to demonstrate that appellant was aware of one of the elements on the right to a trial by jury, i. e.: the requirement of a unanimous verdict. Appellant's new counsel also raises several issues which were not raised below. Additionally, appellant argues that his guilty plea was invalid because it was induced by the improper conduct of his trial counsel who, it is alleged, advised appellant that if he pleaded not guilty and stood trial, he would be found guilty of murder in the first degree and would be sentenced to death.
We agree that the on-the-record colloquy conducted prior to the trial court's acceptance of the guilty plea failed to satisfy the requirements of Pa.R.Cr.P. 319. Because this issue is dispositive there is no need to discuss other issues raised. We therefore reverse the judgment of sentence and remand the matter for further proceedings consistent with this opinion.
It should by now be clear without any doubt that in Pennsylvania certain information must appear on the record before we will uphold the waiver of constitutional rights entailed in a plea of guilty to criminal charges. As we said in ...