No. 209 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County at Nos. 2438 and 2438-A of 1976 and affirmed by the Superior Court of Pennsylvania at No. 1310 October Term, 1977.
Ronald J. Wydo, Wilkes-Barre, for appellant.
Joseph P. Giovannini, Jr., Asst. Dist. Atty., for appellee.
Roberts, Justice. Flaherty, J., files a concurring opinion, joined by Larsen and Kauffman, JJ.
On December 2, 1976, the Court of Common Pleas of Luzerne County found appellant Willis Heeman guilty of charges of criminal solicitation and corruption of a minor, following a guilty plea proceeding at which appellant was represented by privately retained counsel. Appellant was subsequently sentenced to concurrent terms of imprisonment of five to ten years on the former charge and two and one-half to five years on the latter.
With the assistance of new, appointed counsel, appellant took an appeal to the Superior Court, claiming that his plea of guilty had not been entered voluntarily and that no colloquy had preceded it. Relying on Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975), and Commonwealth v. Hughes, 257 Pa. Super. 258, 390 A.2d 811 (1978), a majority of the Superior Court held that appellant had waived his claims because he had failed to file a petition with the trial court for permission to withdraw his plea and had "asserted no valid explanation" for his failure to do so. Commonwealth v. Heeman, 260 Pa. Super. 79, 81, 393 A.2d 1021, 1021 (1978).
Judge Spaeth dissented, joined by Judge Cercone.*fn1 The dissent pointed out that this Court had previously reversed a similar determination of waiver by the Superior Court in Commonwealth v. McCusker, 245 Pa. Super. 402, 369 A.2d 465 (1976), rev'd, 485 Pa. 313, 402 A.2d 500 (1977), and that the Superior Court was bound to follow -- and in other cases had indeed followed -- this Court's holding in McCusker. See Commonwealth v. Marzik, 255 Pa. Super. 500, 388 A.2d 340 (1978); Commonwealth v. Curry, 254 Pa. Super. 444, 386 A.2d 32 (1978). But see Commonwealth v. Hughes, supra. We granted allowance of appeal.
In McCusker this Court held that where the record reveals that an appellant was not informed of his right to file post-verdict motions following the acceptance of his plea of nolo contendere, a challenge to the plea is not waived by appellant's failure to file such motions. We determined that the proper remedy is vacation of the judgment of sentence and remand of the record to permit the filing of post-verdict motions as if timely filed. Accord, Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1979).
As this Court observed in Commonwealth v. Cathey, 477 Pa. 446, 449-50, 384 A.2d 589, 590 (1978):
"The right to appeal is a personal right which a defendant may relinquish only through a knowing, intelligent and voluntary waiver. Fay v. Noia, 372 U.S. 371, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 107, 233 A.2d 220, 221-22 (1967); ABA Project on Standards Relating to Criminal Appeals § 2.2(b) (Approved Draft, 1970). To assure that any waiver of this right is knowing and intelligent, this Court has promulgated Pa.R.Crim.P. 1123(c) and 1405(b), which ensure that defendants are informed not only that they have a right to appeal, but also that any issue they wish ...