August 17, 1979
COMMONWEALTH OF PENNSYLVANIA
ROBERT R. KOBLE, APPELLANT
No. 1669 October Term, 1978, Appeal from Order of the Court of Common Pleas of Northampton County, Criminal Division, at No. 437 October, 1975.
Before Cercone, Hester, and Hoffman, JJ.
Hoffman, J. files a dissenting opinion.
Before accepting a guilty plea, a trial judge must ascertain whether there is a factual basis for the charges brought. Commonwealth v. Wills, 471 Pa. 50, 369 A.2d 1189 (1977).
Here, appellant was charged with attempted murder. During the colloquy, appellant denied pointing the gun at the officer. After a brief recess with appellant, his counsel then stated, "what happened was that the gun was pointed in the direction of the officer, and he fired it. He didn't intend to murder the police officer, but he did do the act." On this factual basis, the court accepted the plea.
It is an essential element of every criminal attempt that the accused possessed a specific intent to commit the crime. 18 C.P.S.A. § 901(a); Commonwealth v. Fierst, Pa. Superior Ct. , 390 A.2d 1318(1978). While specific intent to kill can be inferred from the circumstances of the accused pointing a firearm directly at his intended victim and then discharging the firearm,*fn1 that is not the case here. Rather, appellant denied pointing the the gun at the officer and denied having any intention of shooting the officer; he merely admitted (albeit through his counsel) discharging his gun in the direction of the officer. I do not think that this constitutes a sufficient factual basis of the accused's specific intent to commit murder to allow acceptance of a guilty plea to attempted murder.*fn2 See Commonwealth v. Young, 446 Pa. 122, 125, 285 A.2d 499, (1971) (randomly fired shots insufficient to show attempted murder).*fn3
*fn1 Commonwealth v. Mapp, 232 Pa. Superior Ct. 435, 437,335 A.2d 779, (1975); Commonwealth v. Cross, 231 Pa. Superior Ct. 148, 150, 331 A.2d 813, (1974); Commonwealth v. White, 229 Pa. Superior Ct. 280, 282, 323 A.2d 757, (1974).
*fn2 The American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 1.6, has adopted the "factual basis" requirement. The Commentary states that one reason why the court should always ascertain whether there is a factual basis for the plea is that "the defendant may not completely understand what mental state and acts constitute commission of the offense charged, and it may be that his conduct is not as serious as that charged or that he has a valid defense to the charge."
Here, it appears that appellant (and his counsel) mistakenly believed that he would be convicted of attempted murder if he discharged his gun in the direction of the police officer, even though appellant had no intent to kill the officer. As such, this case vividly illustrates the need for the court to make an independent determination that there is a factual basis for the proffered plea before accepting it.
*fn3 The Court in Young was construing Section 711 of the former Crimes Code, "Attempts with Intent to Kill," Act of June 24, 1939 P.L. 872. Section 711 was an attempted murder statute. Commonwealth v. Clopton, 447 Pa. 1, 289 A.2d 455 (1972).