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COMMONWEALTH PENNSYLVANIA v. EDWARD LEROY KLINGER (08/01/80)

filed: August 1, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD LEROY KLINGER, APPELLANT



No. 255 March Term, 1978.

COUNSEL

Spero T. Lappas, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

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

Author: Watkins

[ 279 Pa. Super. Page 566]

This is an appeal from the Order of the Court of Common Pleas of Dauphin County denying the defendant's Motion to Withdraw his guilty plea. On September 18, 1978, the court below sentenced the defendant, Edward Leroy Klinger, to eight (8) to twenty (20) years in prison on the charge of involuntary deviate sexual intercourse and to two concurrent

[ 279 Pa. Super. Page 567]

    terms of one (1) to two (2) years for indecent assault charges. On September 27, 1978, after the sentences were imposed, the defendant filed a motion challenging the validity of his guilty plea which he had entered on June 1, 1978. Hearing was held on defendant's motion on November 9, 1978 and on December 12, 1978 the court below refused to grant the defendant's motion. This appeal followed.

On June 12, 1977 at 6:30 P.M. Darlene Updegrave answered her door and allowed a stranger to enter her apartment for the purported purpose of consulting a telephone directory to determine the address of a friend. The stranger ordered the victim into the bathroom of her apartment where he forced her to undress and then he fondled her breasts. He then took her to the bedroom where he performed an act of cunnilingus on her, ordered her to fondle his penis, masturbated and then left the apartment. The defendant was arrested and charged with these crimes several months later while an inmate at the Cumberland County Prison awaiting trial on other charges in Cumberland County. He was taken to a line-up on the Cumberland County charges at which the victim was also present. She identified the defendant as the culprit who had entered her apartment on June 12, 1977. The same attorney, Arthur Dils, represented the defendant on both the Cumberland County charges and in the instant case. The defendant now appeals from the lower court's refusal to allow him to withdraw his guilty plea. He claims that his plea was predicated on the ineffective assistance of counsel in that his attorney failed to investigate an alibi defense that was available to the defendant and induced the defendant to plead guilty despite the presence of an alibi defense.

At the outset we note that the defendant did not attempt to challenge his guilty plea until after he was sentenced even though three and one-half (3 1/2) months had passed from the date of the plea to the date of sentencing. We also note that the defendant does not allege that the guilty plea colloquy was inadequate.

The defendant's appeal revolves around the significance of a telephone bill which shows that the defendant's girlfriend,

[ 279 Pa. Super. Page 568]

    with whom he resided when he was in Harrisburg, indicated that on June 19, 1977 she had received a collect call from Fremont, Indiana. The significance of this telephone bill concerns defendant's testimony that he divided his time between Colorado, where he helped to manage a business and Harrisburg, that he always drove from and to the locations, that he always stayed in either Colorado or Harrisburg at least two (2) weeks after arriving at either place, and that he would telephone his girlfriend when he got to Indiana en route to Harrisburg. Although he couldn't remember the particular date of June 12, 1977, the defendant claims that the record of the long distance telephone call from Fremont, Indiana on June 19, 1977, "judging from his habitual frequency of travel" tended to prove that he was in Colorado from June 11, 1977 until shortly before June 19, 1977, that, therefore, he was not even present in Pennsylvania on June 12, 1977, the date of the crime. The defendant's argument is that his attorney neglected to explore this defense (of alibi) with the defendant, and failed to adequately ...


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