No. 1308 Philadelphia, 1981, Appeal from the Judgment of Sentence, Court of Common Pleas, Lebanon County, Criminal Division, No. 400 of 1980.
John C. Tylwalk, Assistant Public Defender, Lebanon, for appellant.
William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
Johnson, Watkins and Lipez, JJ. Lipez, J., files a concurring opinion.
[ 305 Pa. Super. Page 323]
On July 31, 1980, Appellant was charged with one count of Burglary.*fn1 Appellant's guilty plea was received on September 17, 1980; and he was sentenced on April 21, 1981. The court denied Appellant's motion to withdraw guilty plea and for modification of sentence. This is an appeal from the judgment of sentence. For the following reasons, we affirm.
Appellant presents two issues for our consideration. First, did the lower court err in denying Appellant's motion to withdraw guilty plea since the court failed to advise Appellant that he was presumed innocent until proven guilty?*fn2 Second, did the lower court err in denying Appellant's motion for modification of sentence?
In considering Appellant's first issue, we must consider not only what the court failed to tell Appellant but also the information that the court conveyed to Appellant regarding the presumption of innocence. The relevant portion of the very thorough and complete colloquy in the instant case consisted of the following dialogue between the judge and Appellant:
If you should elect to plead not guilty, then the court advises you that before you can be convicted, the prosecution will have the burdon [sic] of proving beyond a reasonable
[ 305 Pa. Super. Page 324]
doubt your guilt, and before a jury could find you guilty of the charge of burglary, all twelve of them would have to agree that you are guilty beyond a reasonable doubt.
However, if your plea of guilty is accepted, you waived, that is you give up each of the rights that I ...