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COMMONWEALTH PENNSYLVANIA v. VIKING DYAS (01/31/79)

decided: January 31, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
VIKING DYAS, APPELLANT



No. 257 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania Criminal Division at No. 7404745A.

COUNSEL

Joel S. Perr, Pittsburgh, for appellant.

Charles W. Johns, Pittsburgh, for Commonwealth, appellee.

Price, Hester and Watkins, JJ.

Author: Hester

[ 263 Pa. Super. Page 131]

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, imposed at No. 7404745A. The procedural history and facts relevant to the issues on appeal are as follows:

Appellant met the victim, Mary Jo Nardozzi, at the Executive Lounge in Pittsburgh in the early evening of June 19,

[ 263 Pa. Super. Page 1321974]

. During their conversation, appellant gave her his name, address and place of employment. At approximately 11:00 P.M., as Miss Nardozzi was planning to depart, appellant offered to drive her home. Upon arrival at her residence, appellant was invited in for coffee. A short while thereafter, appellant made sexual advances, was rebuffed and made no further advances until leaving the apartment. At that time, he put his arms around her in a bear hug, picked her up, and threw her on the bed, falling on top of her. She freed herself and ordered him out of the apartment. He placed his hands on her neck, starting to choke her, while asking for permission to commit sodomy on her. Appellant continued to choke her as he removed her slacks and underclothing. The victim blacked out at this point, but upon regaining consciousness, she found herself in the kitchen with appellant bending over her while stabbing her in the throat with a pair of scissors. She was stabbed a total of twelve times, after which she was placed on the sofa and covered with a bedspread. Appellant then left the apartment but was promptly identified, arrested and charged with aggravated assault and attempted rape. He retained a private lawyer who represented him until sentence was imposed. On the day of trial, counsel discussed a possible plea bargain with the Assistant District Attorney who indicated that the Commonwealth would not consider a sentence of less than five to ten years as part of any plea bargain. No express plea bargain was ever offered by the Commonwealth or accepted by the appellant. Trial counsel advised appellant that he felt a sentence of less than five to ten years could be obtained by pleading guilty to aggravated assault and attempted rape, and so informed the appellant. He did not advise his client regarding the possible maximum sentence of fifteen to thirty years for these two charges.

Following jury selection, trial counsel indicated the appellant wished to plead guilty. During the colloquy that ensued, the trial judge advised the defendant of all rights which were involved. Appellant was apprised of the range of possible sentence and the elements which were required

[ 263 Pa. Super. Page 133]

    to be proven by the Commonwealth for each offense. Appellant agreed on the record that no plea bargain existed. When asked why he was pleading guilty, he replied, "I feel that under the circumstances, there would be nothing gained for myself or for the woman involved of really to go through a court trial." Appellant was then asked whether he committed the offenses and he answered in the affirmative. The trial judge agreed to hear the testimony of Dr. Herbert Thomas and ordered a presentence report prior to sentencing. This was done. On March 18, 1975, appellant was sentenced to (9) nine to 20 years imprisonment. No post trial motions were filed and no appeal was taken from the Judgment of Sentence. Later, after securing new counsel, appellant filed a motion for leave to file motions nunc pro tunc. The trial court granted the motion. After denial of the motion to withdraw a guilty plea, this timely appeal followed.

Appellant contends that his guilty plea was accepted without properly determining if he understood the elements of the crimes by stating what actions he performed which made him guilty of those crimes. A careful reading of the record discloses that the trial court discussed the elements of both attempted rape and aggravated assault in such a manner that a layman could understand each element of the crimes charged, as evidenced by appellant's answers to the trial judge's questions with relation to those elements. Reading the guilty plea colloquy in its entirety, it satisfies the standards set forth by our Supreme Court in Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). In Commonwealth v. Kearse, 233 Pa. Super. 489, 334 A.2d 720 (1975), heavily relied upon by the appellant, there was no explanation of the nature of the charges or the elements given the defendant prior to the entry of the plea. Additionally, unlike the instant case, the ...


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