No. 22 January Term, 1978, Appeal from the order (verbal) of December 14, 1977 in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, No. 540-77 Denying Defendant's Petition to Withdraw Guilty Plea
Denis V. Brenan, Philadelphia, for appellant.
William T. Nicholas, Dist. Atty., Ronald T. Williamson, Chief, Appellate Div., Asst. Dist. Atty., for appellee.
O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Eagen, C. J., did not participate in the decision of this case. Roberts, J., concurred in the result.
Appellant, William Francis Higgins, on October 7, 1977, entered a plea of guilty to murder of the third degree, 18 Pa.C.S.A. § 2502(c) (Supp. 1978-79) criminal attempt to murder, 18 Pa.C.S.A. § 901 and aggravated assault, 18 Pa.C.S.A. § 2702. Pursuant to the bargain which prompted the plea*fn1 the degree of murder was reduced from first degree to third degree and a nol. pros. was entered upon the indictments charging recklessly endangering another person, 18 Pa.C.S.A. § 2705 and possession of instruments of crime 18 Pa.C.S.A. § 907. The agreed upon sentence was not less than 10 nor more than 20 years imposed on the murder bill and a consecutive sentence of 5 to 10 years on the attempted murder bill. The sentence was suspended on the aggravated assault charge. Appellant presently contends: a) that the trial court should have permitted a withdrawal of his plea of guilt; b) that the court should not have accepted the entry of a plea of guilt where the defense of insanity was readily apparent; c) that he was incompetent at the time of the entry of the plea; and, d) that he did not receive effective assistance of trial counsel.
On the evening of January 30, 1977, Michele Connella was shot in the back and killed by appellant as he exited from his
truck in the parking lot of Gus's Diner in Norristown, Pennsylvania. After shooting Mr. Connella, appellant fired several other shots into the diner. One of the patrons, Harry Bufo was seriously injured from glass and metal caused by one of the bullets which had been fired into the diner. After firing the four shots, appellant went to his vehicle and drove home. Appellant did not know the victims and had no reason to shoot them.
A review of the procedural history reveals that the instant appeal was untimely filed. The judgment of sentence was entered following the entry of the pleas on October 7, 1977. At the time of the imposition of sentence, the on the record colloquy establishes that appellant was advised that an appeal to a higher court would have to be taken within thirty days of that date. An appeal was not filed in this Court within the thirty day period and appellant has failed to offer any reason for his failure to timely file.
To the contrary, rather than seeking a direct review of his appeal in this Court, appellant petitioned the trial court for the right to withdraw his pleas of guilt. This motion was filed November 30, 1977. The instant appeal purports to be an appeal from the court's denial of that request and was filed within thirty days of the court's rejection of the motion to withdraw the pleas.
In Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973), we clarified the power of the court to consider a motion to withdraw a plea of guilty after sentencing under Pa.R.Crim.P. 320.*fn2 In Starr, we noted that although the language of rule 320 might suggest that it was confined to pre-sentence applications, prior case law dictated a holding that post-sentence applications could also be entertained under the rule. Decisions following Starr pointed out that the proper method of challenging a plea of ...