Nos. 279 & 280 April Term, 1978, Appeal from Judgment of Sentence entered in the Court of Common Pleas, Allegheny County, Criminal Division at No. 7500952A on September 30, 1977 and Order of Court at No. 7500952A entered on September 29, 1977.
Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, Wieand and Hoffman, JJ.
[ 264 Pa. Super. Page 606]
Appellant contends that the trial court erred in denying his request to withdraw a plea of guilty prior to sentencing. We agree and reverse.
Appellant, Donald Champion, was charged with involuntary deviate sexual intercourse, aggravated assault, recklessly endangering another person, and firearms violations arising out of a sexual assault on August 16, 1974 in Pittsburgh.
[ 264 Pa. Super. Page 607]
On March 30, 1977, following an unsuccessful attempt to have the charges dismissed under Pa.R.Crim.P. 1100, a jury was selected to try appellant. He thereupon changed his plea to guilty of all charges. Sentence was deferred pending preparation of a pre-sentence investigation. On September 12, 1977, prior to sentencing, appellant moved orally to withdraw his plea of guilty. This was followed by a written request on September 29, 1977. Both requests were denied, and on September 30, 1977, appellant was sentenced to concurrent terms of imprisonment for not less than three years nor more than six years. Thereafter, the issue was presented to the trial court in a motion for new trial. After this had been denied, an appeal was filed to this Court.
Pa.R.Crim.P. 320 states: "At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted." Even though the decision to allow withdrawal of a plea is within the court's discretion, such requests, if made before sentencing, should be liberally allowed. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Santos, 450 Pa. 492, 301 A.2d 829 (1973); Commonwealth v. Boofer, 248 Pa. Super. 431, 375 A.2d 173 (1977).
The test used to determine whether a petition to withdraw a guilty plea should be granted is that of "fairness and justice. . . . If the trial court finds 'any fair and just reason', withdrawal of the plea before sentence should be freely permitted . . ." Commonwealth v. Forbes, supra, 450 Pa. at 191, 299 A.2d at 271. See also: Commonwealth v. West, 250 Pa. Super. 557, 378 A.2d 1289 (1977). A crucial factor in making this determination is whether the withdrawal will cause substantial prejudice to the Commonwealth. Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976). Most recently, the Supreme Court has held that after the Commonwealth's case has commenced, the trial court can allow withdrawal of a guilty plea only for "compelling reasons . . ., such as a court's improper acceptance [of the plea]." Commonwealth v. Whelan, 481 Pa. 418, 422, 392 A.2d 1362, 1364 (1978).
[ 264 Pa. Super. Page 608]
Appellant contends that during the colloquy conducted at the entry of his plea he was told erroneously that he could appeal the denial of his Rule 1100 application to dismiss even after the entry of a guilty plea. He also complains that he was not told that he was presumed to be innocent of the ...