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COMMONWEALTH PENNSYLVANIA v. JOSEPH FRANCIS BORRIS (08/15/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 15, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH FRANCIS BORRIS, APPELLANT

No. 1302, 1303, 1304 April Term, 1978, Appeal from the Judgments of Sentence of the Court of Common Pleas of Fayette County, Criminal Division, Nos. 378, 378 1/2, 379, 379 1/2, 380, 380 1/3, 380 2/3, 381, 382, 383, 386, 387, 387 1/3, 387 2/3, 388, 389, 389 1/3, 389 2/3, 390, 390 1/2, 391, 391 1/2, 392, 392 1/2, 393, 393 1/4, 393 2/4, 393 3/4, 394, 394 1/2, 395, 395 1/2, 396, 397, 520, 520 1/2, 521, 521 1/4, 521 2/4, 521 3/4, 522, 522 1/4, 522 2/4, 522 3/4, 523, 524, 524 1/3, 524 2/3, 525, 525 1/2, 526, 526 1/2, 527, 527 1/2, 528, 528 1/2, 529, 529 1/4, 529 2/4, 529 3/4, 628, 628 1/2, 629, 629 1/2 all of 1975.

COUNSEL

Daniel G. Reilly, Uniontown, for appellant.

Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

Price, Hester and Cavanaugh, JJ.

Author: Hester

[ 280 Pa. Super. Page 370]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Fayette County. For reasons discussed herein we strike the sentences entered below and grant appellant's petition to withdraw his guilty pleas.

On April 28, 1975 appellant was arrested and indicted on charges arising out of the infamous "Connellsville Police Cases".

After the lower court denied motions for a change of venue and to dismiss, appellant filed appeals with this Court. We (per Hoffman, J.) discharged appellant holding that the Commonwealth failed to bring him to trial within the period mandated by Pa.R.Cr.P. 1100. See Commonwealth v. Borris, 247 Pa. Super. 273, 372 A.2d 458 (1977).

Thereupon, the Commonwealth petitioned for allocatur. On August 8, 1977 by an unusual procedure, the Supreme Court via an order entered on the allocatur docket,*fn1 reversed

[ 280 Pa. Super. Page 371]

Judge Hoffman's decision and remanded the case to the Superior Court.

On remand, we affirmed per curiam, Commonwealth v. Joseph Borris, 247 Pa. Super. 273, 384 A.2d 983 (1978).

Thereafter, appellant petitioned for allocatur. However, before the allocatur petition was acted upon, appellant appeared before the lower court and entered pleas of guilty as to all cases against him; these cases being the same as are now awaiting disposition before the Supreme Court (on the issue of 1100 and venue). Approximately two months later appellant petitioned the lower court to withdraw his pleas of guilty, which petition was denied and subsequently sentence was imposed.

Appellant now contends that the lower court erred in refusing to allow him to withdraw his pleas of guilty.

We agree. However, we believe that the lower court had no authority to accept the guilty pleas in the first instance.

Although the case had not yet gone to trial, the disposition of pre-trial motions (concerning venue and 1100) was on appeal. Rule 1701(a) Pa.R.Ap.P. provides:

(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.

Thus we believe the lower court had no authority to act on the case in a substantive manner.

In Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965) where the lower court entered orders pertaining to a case which had been appealed, the court stated:

"The law is clear that since these orders were entered in actions that were on appeal the orders were improper and can have no determinative effect upon the appeals." Id., 418 Pa. at 275, 210 A.2d at 889. See also, note to Rule 1701.

[ 280 Pa. Super. Page 372]

Once the notice of appeal was filed in this case, the lower court could no longer proceed further in the matter.

Thus we are constrained to reverse the sentences imposed below and grant appellant's petition to withdraw his pleas of guilty.


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