No. 412 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, No. 4410A September, 1974.
Lester G. Nauhaus, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Price, Hester and Watkins, JJ. Hester, J., files a dissenting statement.
[ 272 Pa. Super. Page 563]
Appellant entered a plea of nolo contendere to charges of theft,*fn1 forgery,*fn2 and uttering a forged instrument.*fn3 After the Commonwealth presented testimony establishing a factual basis for the crimes, the trial court accepted appellant's plea. Sentence was suspended, and appellant was placed on probation for a period of two years and ordered to make restitution and to pay the costs of prosecution. No direct appeal was taken. This appeal is from an order*fn4 of the court of common pleas denying appellant relief on his petition
[ 272 Pa. Super. Page 564]
filed pursuant to the Post Conviction Hearing Act*fn5 (PCHA). On appeal, appellant contends that: the testimony of one Harold DeMino (a convicted felon whom appellant claims was the guilty party in the crimes charged) was after-discovered evidence entitling appellant to a new trial; his plea of nolo contendere was not intelligently and voluntarily entered; and that the failure of counsel to inform him of the consequences of his plea, particularly with respect to a term of probation that he was serving for previous offenses, rendered him ineffective. We agree with appellant's latter two contentions, and therefore remand the case to the court of common pleas for a new trial.*fn6
The pertinent facts are as follows. On April 20, 1974, appellant entered Palmer's Drugstore in West Deer Township, Allegheny County, and cashed a payroll check for $178.36 from the Fort Pitt Packaging Company.*fn7 Appellant presented the check to Mr. Daniel Yanicko, pharmacist for Palmer's Drugstore, and offered as identification a driver's license bearing the name of Stanley Zelc. A week after its presentation, the check was returned to Mr. Yanicko by his bank and was marked "no account." Mr. Yanicko reported the incident to Allegheny County detectives. After Mr. Yanicko identified appellant from a set of police photographs, appellant was apprehended. Pursuant to a warrant, a search of appellant's home was subsequently conducted,
[ 272 Pa. Super. Page 565]
and the police discovered eleven other checks, all from the same series as the one previously cashed and all bearing the name of Fort Pitt Packaging Company.
At trial, after Detective Donald Durochia testified to the aforementioned facts, appellant's counsel announced that appellant had decided to change his plea from not guilty to nolo contendere. A "colloquy" was conducted, but when the Commonwealth protested that a sufficient factual basis for the crime had not as yet been established, the court called a recess to allow appellant to consult with counsel concerning the plea. Court was reconvened an hour later, and after Mr. Yanicko testified, counsel renewed appellant's plea, and it was accepted by the court.
On February 23, 1976, appellant filed a PCHA petition alleging basically the same claims he makes in the instant appeal. After a hearing on September 13, 1976, this petition was denied without prejudice to appellant to file a petition to withdraw his plea of nolo contendere. It was subsequently agreed that appellant's PCHA petition would substitute as a petition to withdraw his plea. A hearing was conducted on February 22, 1977, and appellant was denied permission to withdraw his plea per order of the Honorable James F. Clarke, dated March 21, 1977. Appellant filed a petition to this court to remand to the trial court for the taking of the testimony of Harold DeMino. Commonwealth v. Bruno, No. 698 April Term, 1977. That petition was granted on July 18, 1977. ...