No. 118 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division, at Nos. 828, 828A, 828B CD 1979
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, McEwen and Beck, JJ.
[ 295 Pa. Super. Page 363]
Appellant was charged with simple assault by physical menace, aggravated assault, and carrying a firearm without a license. On November 15, 1979, appellant appeared, accompanied by his privately retained counsel, before the Honorable William Caldwell. Counsel told the court that his client indicated to him that he wished to plead guilty to the charges; to which the court responded:
Under those circumstances if you wouldn't mind I would like to conduct the colloquy now and I am willing to continue the matter until later.
At this point, a guilty plea colloquy was conducted, following which the court stated that it accepted the plea. The District Attorney then stated that the prosecution had no testimony, but would be willing to bring the witnesses in at a later date. Defense counsel indicated that he did not desire to cross-examine any witnesses. The District Attorney then stated that he did wish to bring in one of the victims to testify, and the court continued the case until January 18, 1980 for this purpose.
On January 18, 1980, appellant again appeared before Judge Caldwell. The District Attorney informed Judge Caldwell that appellant's attorney, Mr. Federico, had indicated to him that he would not be available for some time due to his involvement in a lengthy trial. Stating that the two victims were present in court, the District Attorney requested that he be permitted to call them to the stand to testify "because I have been advised it will be a guilty plea." The court then asked appellant:
Mr. Smith, is it correct that you intend to plead guilty when your attorney gets here? [Appellant]: Yes, sir, I do, your Honor. The Court: All right, I am going to hear the testimony of the victims so that they don't have to sit
[ 295 Pa. Super. Page 364]
around until this afternoon when your attorney comes here. We will start over again if you have any quarrel with what they have to say, you can tell him about that so if you will just take a seat there at the table, I will hear the victims at this time.
The victims then testified, but were not cross-examined. Thereafter, court was adjourned so that the District Attorney could locate appellant's counsel. Approximately two hours later, court resumed. The District Attorney stated for the record that appellant was present and represented by Mr. Federico, and that he wished to enter a plea of guilty to the charges. A guilty plea colloquy then took place, following which the court accepted appellant's guilty plea to each of the charges. The District Attorney then provided the court with additional factual background to the incident from which the charges arose. Following this, the court asked appellant some questions concerning his prior record of incarceration and the offenses involved. Appellant then attempted to give his version of what had actually happened on the day in question, by way of defense. The court then ordered that appellant be placed in jail temporarily pending a pre-sentence investigation. On April 18, 1980, appellant was sentenced to a term of imprisonment of not less than four nor more than ten years on the aggravated ...