No. 2565 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Cumberland County, Criminal Division, Nos. 623 of 1976, 398 of 1978, and 483 of 1978.
C. Roy Weidner, Jr., Lemoyne, for appellant.
Edgar B. Bayley, Jr., District Attorney, Carlisle, for Commonwealth, appellee.
Spaeth, Wieand and Johnson, JJ. Wieand, J., files a concurring opinion. Spaeth, J., files a dissenting opinion.
[ 295 Pa. Super. Page 15]
This is an appeal from an order dismissing Appellant's petition to withdraw three guilty pleas. For the following reasons, we affirm.
Appellant pleaded guilty to a charge of Unauthorized Use of Automobiles and Other Vehicles.*fn1 Subsequently, Appellant entered two additional guilty pleas to charges of Criminal
[ 295 Pa. Super. Page 16]
Attempt*fn2 and Escape.*fn3 Appellant was sentenced on all three charges. Appellant filed neither post-sentence motions nor a direct appeal.
Nine months later, Appellant filed a petition under the Post Conviction Hearing Act*fn4 (PCHA) to withdraw his guilty pleas alleging ineffective assistance of counsel. The court dismissed the PCHA petition, from which order an appeal was filed. We granted Appellant leave to file a petition to withdraw the guilty pleas nunc pro tunc.*fn5 Appellant filed the aforesaid petition, and a hearing was conducted thereon. This is an appeal from the order of October 16, 1980, which dismissed Appellant's petition.
Appellant raises two issues in this appeal. First, were the guilty pleas invalid because Appellant was not sufficiently apprised of the nature of the charges? Second, did the guilty pleas constitute valid waivers of Appellant's right to a jury trial?
We proceed to consider Appellant's first issue. Preliminarily, we note that Appellant was represented by counsel at all three guilty plea colloquies. At the colloquy on February 16, 1977, the prosecution agreed to accept a plea of guilty to unauthorized use of a stolen motorcycle, although Appellant had been charged with Receiving Stolen Property.*fn6 Receiving Stolen Property is a felony of the third degree,*fn7 for which the maximum sentence is seven (7) years imprisonment,*fn8 while the maximum sentence for Unauthorized Use, a
[ 295 Pa. Super. Page 17]
misdemeanor of the second degree,*fn9 is two (2) years.*fn10 By pleading guilty to Unauthorized Use, Appellant was assured that his maximum allowable sentence was reduced by five (5) years.
The court explained Unauthorized Use as follows:
THE COURT: You understand by entering your plea you are admitting that you used this vehicle, this motorcycle, knowing that you did not have the permission or authority of the owner to use it? [Emphasis added.]
The offense is defined as follows:
Unauthorized use of automobiles and other vehicles
Because the court explained the offense of Unauthorized Use as the use, rather than the operation, of the vehicle, Appellant contends that this colloquy was defective. Our review of the record persuades us that Appellant knowingly, intelligently, and voluntarily entered into this plea with a thorough understanding of the nature of the charge. Appellant's brief does not present any arguments that would persuade us to reach a contrary conclusion, and we note that the cases cited therein are not applicable to the instant case.
Appellant also contends that the foregoing guilty plea was invalid because the trial judge did not inform Appellant of the following defense that is provided by statute:
It is a defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he known of it.*fn12
[ 295 Pa. Super. Page 18]
As discussed above, if Appellant had not pleaded guilty to Unauthorized Use, he would have been tried for Receiving Stolen Property. Thus the defense to Unauthorized Use would have been immaterial. Also, we note that the court's failure to advise Appellant of all possible defenses does not per se render the plea invalid. Commonwealth v. Johnson, 460 Pa. 169, 177, 331 A.2d 473, 476-7 (1975); Commonwealth v. Stokes, 264 Pa. Super.Ct. 515, 519, 400 A.2d 204, 206 (1979). Here, there is no suggestion in the record that Appellant had any belief that the owner of the motorcycle would have consented to its operation had he known of it. We find this contention to be without merit.
Appellant next contends that the plea to attempt to commit robbery was invalid because he was not informed of the elements of the crime. The court described the offense as follows:
THE COURT: The offense of robbery, of course, is pretty evident I think. It constitutes the attempt to take property from another by putting them in fear and by use of force, and at the time of the attempt the person doing so is in full possession of his mental capabilities. Do you have any questions about any of the, about the nature or any of the elements of criminal attempt to commit robbery?
We find that the foregoing description adequately apprised Appellant of the elements of attempt to commit robbery.
The third prong of Appellant's first issue is the claim that the description of escape was inadequate because the judge did not inform Appellant of the elements of this charge. The court stated:
THE COURT: You have heard the statements of the district attorney as to what occurred, namely that you were here in this court for a presentence investigation and on the way to prison, without permission of the guards that had you in custody you slipped a handcuff and disappeared for a while. Do you have any questions as to the nature and elements of the offense of escape?
[ 295 Pa. Super. Page 19]
Section 5121(a) of 18 Pa.C.S.A. defines the elements of escape as follows:
(a) Escape. -- A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
The court's colloquy adequately informs Appellant of the nature of the crime of escape to ...