No. 261 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, dated January 3, 1980, granting defendant's Petition to Withdraw his Guilty Plea, as of Information Nos. 125-132, December, 1978.
Ellen Mattleman, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
William T. Cannon, Philadelphia, for appellee.
Brosky, Watkins and Cirillo, JJ.*fn*
[ 283 Pa. Super. Page 30]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Philadelphia County granting defendant-appellant's petition to withdraw his guilty plea. He had pled guilty on April 19, 1979, after a full and complete colloquy, to the crimes of rape, involuntary deviate sexual intercourse, possession of instruments of crime and robbery.
At the colloquy every possible question to protect the defendant's rights were asked and answered by the defendant under oath with his counsel standing beside him. The Commonwealth related in great detail what it intended to prove and he admitted that he performed the acts charged, and that it was his intention to plead guilty. It is difficult, after reading the longest colloquy I have ever read, and the opinions of the court below to find adequate reasons for permitting this plea to be withdrawn. It was made clearly, intelligently and voluntarily. After reading this colloquy where the defendant admitted the crimes charged, I am reminded of an incident related by counsel for a defendant entering a plea of guilty, who during the colloquy turned to his counsel and whispered: I don't think the judge wants me to plead guilty when I have already told him that I am guilty."
The evidence presented at the colloquy reveals in detail that on November 15, 1978 at approximately 6:00 P. M., Angeline Certaine who was twenty-five years of age at the time, was walking up 61st Street in Philadelphia. The defendant, Karl Mosley, came up behind her and placed a razor blade against the side of her neck. He led her to the rear of 5902 Jefferson Street and told her he would cut her throat if she made any noise. He took all the money she had, seventy cents. She was told to get on the ground and take off her pants, the defendant again telling her to stay quiet. He then raped her vaginally. Holding the razor against her throat he next thrust his penis into her rectum. During this occurrence a nickel fell out of her clothing and he said he should kill her for not giving him all her money.
[ 283 Pa. Super. Page 31]
Afterwards, he again raped her and then forced her to suck his penis. Then, before he fled, he again raped her orally and vaginally. All this was related in the colloquy and admitted by the defendant.
The plea was entered on April 19, 1979. On September 16, 1979, the petition to withdraw the plea was filed and after hearing was denied by the court below on November 13, 1979. A petition for reconsideration was filed and after hearing the court on January 3, 1980, granted the prayer of the petitioner to withdraw his guilty plea. This appeal by the Commonwealth followed.
In the court's first opinion it was stated: "Initially, we look to determine whether there exists a 'fair and just reason' to permit the withdrawal of defendant's guilty pleas. In resolving this threshold question, we must reject defendant's contentions of coercion by his then-counsel, Mr. Sosnov. Mr. Sosnov provided defendant with a frank assessment of defendant's situation and the possible alternatives, which he coupled with an expressed willingness and preparedness to proceed with the trial and defense of defendant. Defendant does not dispute this. Further, defendant's claim of inaction on the part of his then-defense counsel was disproved at the hearing on October 25, 1979. Thus we must reject such contentions.
"We must then discover whether there is an assertion of innocence . . . . In his formal petition defendant ...