Nos. 138 and 147 January Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, Delaware County, from the Order of October 5, 1976, Denying Motion for Withdrawal of Guilty Plea and Vacation of Sentence and from Judgment and Sentence on Criminal Docket Numbers 1200A, 1200B, 1200E, 2166D, 2167D, May Term, 1975.
Berkowitz & Gutkin, Malcolm W. Berkowitz, Philadelphia, for appellant.
Joseph P. Cronin, Jr., Guy A. Messick, Asst. Dist. Attys., Media, for appellee.
Roberts, Nix, Manderino and Larsen, JJ. Larsen, J., filed an opinion in support of affirmance. Nix, J., concurs in the result. Roberts, J., filed an opinion in support of reversal. Manderino, J., dissents in the result without an opinion. Eagen, C. J., and O'Brien, J., did not participate in the consideration or decision of this case.
The Court being equally divided, the judgments of sentence remain in effect.
OPINION IN SUPPORT OF AFFIRMANCE
Appellant was arrested for the March 25, 1975 shooting death of the Glenolden, Pennsylvania, Police Chief, Robert Sparks, and charged, inter alia, with murder, criminal attempt to commit robbery on Chief Sparks, criminal attempt to commit robbery on an Officer Gerard Quinn (Sparks' companion at the time of the shooting), conspiracy to commit robbery, and crimes committed with firearms. Trial by jury commenced on December 8, 1975 in the Court of Common Pleas of Delaware County, Judge Domenic Jerome presiding. Following jury selection, opening arguments and the presentation of six Commonwealth witnesses, appellant changed his plea to guilty on the above charges. On December 9, 1975, a guilty plea colloquy was held before Judge Jerome who accepted appellant's plea. On August 9, 1976 appellant was adjudicated guilty of murder of the second degree and sentenced to life imprisonment on that conviction, which sentence was to run concurrently with the prison sentences on the other convictions.
Following sentencing, appellant retained new counsel who filed a Petition for Withdrawal of Guilty Plea. A hearing was held on this motion and, by order dated October 5, 1976, Judge Jerome denied appellant's petition to withdraw his plea of guilty. Direct appeal of the murder conviction was taken to this Court; the other convictions were certified to this Court from the Superior Court.
This Court has recognized that the petition to withdraw a guilty plea after sentencing would be a useful
procedure to employ as a sentence-testing device and, if permitted with any degree of liberality, would invite abuse. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592, 594 (1973). Consequently, we have held that where the withdrawal of the guilty plea is sought after sentence is imposed, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified. Id., 450 Pa. at 490-91, 301 A.2d 594; see Commonwealth v. Rivers, 482 Pa. 184, 393 A.2d 441 (1978); Commonwealth v. Zakrzewski, 460 Pa. 528, 532, 333 A.2d 898 (1975); see Fed. Rules of Crim.P. Rule 32(d) and ABA project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 2.1 at 9-10 (Approved Draft, 1968).
In the instant case, appellant enumerates eight issues which he asserts demonstrate such manifest injustice as to require allowance of his petition to withdraw his guilty plea. Many of these issues are substantially repetitive. In essence, appellant posits only three issues for our consideration:
1) Whether the factual basis for the charges appeared on the record;
2) Whether the nature of the charges and the relation of the facts to the crimes charged were adequately explained to appellant; and
3) Whether there was error on the part of both counsel and the court in failing to recognize, from the facts which were presented, what appellant contends was a "complete defense".*fn1
The following dialogue, relevant to the above issues, between appellant and Judge Jerome was contained in the colloquy:
THE COURT: Lewis Lee, you have heard [defense counsel] explain a lot of rights to you, and I realize you are sixteen years old. Now, is there any question you want to ask me concerning any of those rights?
THE COURT: Have you consulted with your parents in your discussions with [defense counsel] before you entered this plea of guilty?
THE COURT: Now, do you understand that if I accept the plea of guilty to Murder Generally, that means I will have the obligation to find either Murder in the Second Degree or Murder in the Third Degree, because when you plead guilty to Murder Generally you are saying in effect that I committed some acts which are a form of criminal homicide; in other words, they're the result of my acts or somebody with whom I was associated that night, we call him an accomplice, Robert Sparks died.
Now, you would be responsible for his death, not as the person who fired the shot but as the person who was in the company of the person who fired the shot, and that is called a conspirator.
Do you understand what I am saying?
THE COURT: That you are not being charged with being the person who actually fired the bullet who caused the death of Robert Sparks. You're not being ...