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COMMONWEALTH PENNSYLVANIA v. SAMUEL FOSTER (03/21/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 21, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL FOSTER, APPELLANT

No. 2062 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 634-635 September Term, 1971.

COUNSEL

Lawrence S. Rosenwald, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Cercone

[ 276 Pa. Super. Page 145]

Appellant takes this appeal from the lower court's denial of appellant's Post-Conviction Hearing Act*fn1 (PCHA) petition.

[ 276 Pa. Super. Page 146]

Appellant argues, inter alia, that the colloquy incident to his plea of nolo contendere*fn2 was defective in that the lower court never explained the elements of the charged offenses to appellant prior to the acceptance of the plea. Appellant's argument has merit; therefore, we reverse appellant's conviction and remand for a new trial.

On January 17, 1974, appellant, Samuel Foster, who was represented by counsel from the Defender Association of Philadelphia, entered a plea of nolo contendere on charges of carrying a concealed deadly weapon,*fn3 aggravated robbery,*fn4 and burglary.*fn5 Prior to accepting this plea, the trial court conducted a colloquy*fn6 on the record during which the court explained to appellant the meaning of a nolo contendere plea, appellant's right to a trial by jury and other trial rights, but during which the court made no attempt to explain to appellant the elements of the charges against him. In fact, from the colloquy alone, one could not determine what offenses appellant was charged with committing. Admittedly, the record does indicate that appellant was arraigned at the bar and pleaded nolo contendere, but the arraignment was off the record and there is no indication that the court ascertained whether appellant understood the nature and the elements of the charges against him.

[ 276 Pa. Super. Page 147]

Subsequently, appellant filed the PCHA petition at issue in the instant case, arguing the defectiveness of the plea colloquy and, therefore, the ineffectiveness of trial counsel in failing to raise this issue on appeal.*fn7 The lower court held a hearing concerning appellant's petition and concluded that appellant's argument was sound. Therefore, initially, the court granted appellant's petition and ordered that appellant's conviction be reversed and a new trial held. However, the court reversed itself when the Commonwealth submitted a petition for reconsideration, because the court found that appellant's petition was not specific enough in setting forth the facts in support of relief, as required by 19 P.S. § 1180-5(a)(4) (Supp.1979).*fn8 The present appeal is from this last ruling of the lower court. The lower court, as required by Pa.R.App.P. 1925(a), filed an opinion explaining its ruling. Having given its ruling this additional scrutiny and analysis, in its opinion the court concluded that its initial

[ 276 Pa. Super. Page 148]

    order was correct, and that the relief sought in the Commonwealth's petition for reconsideration should have been denied.*fn9

We, too, conclude that the lower court was in error for granting the Commonwealth's petition for reconsideration. Not only is appellant's argument meritorious but, additionally, there is no substantial question about appellant's specificity on the facts. In his PCHA petition, appellant lists as one of the facts in support of his petition, "The court failed to advised [sic] me of all the legal elements of my alleged [sic] crime, nor did the court inform me of the maximum and minimum penalties." This recitation is sufficiently specific under 19 P.S. § 1180-5(a)(4). Accordingly, we hereby reverse the order of he lower court (which granted the Commonwealth's motion), reverse appellant's conviction and remand for a new trial.

Reversed and remanded for a new trial.


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