No. 839 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC7804611A.
Andrew J. Achman, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ. Johnson, J., files a dissenting opinion.
[ 309 Pa. Super. Page 393]
Appellant contends that his guilty plea colloquy was defective in not apprising him of all the elements of robbery. We agree and, accordingly, reverse the judgment of sentence, permit appellant to withdraw his plea, and grant a new trial.
On July 22, 1978, appellant entered an Allegheny County grocery store and handed the cashier a note demanding money. During the ensuing struggle and flight, appellant's gun discharged several times, wounding a bystander in the arm. Appellant was charged with robbery, recklessly endangering another person and three weapons offenses. He pled guilty to robbery and recklessly endangering in exchange for the Commonwealth's dropping the weapons charges. After accepting the pleas, the lower court suspended sentence on recklessly endangering,*fn1 but sentenced
[ 309 Pa. Super. Page 394]
appellant to ten-to-twenty years imprisonment for robbery. In a subsequent Post Conviction Hearing Act petition, appellant alleged, inter alia, that his counsel had been ineffective in failing to perfect his appeal. The lower court agreed and allowed appellant to file post-verdict motions nunc pro tunc. In those motions appellant petitioned to withdraw his guilty plea alleging the colloquy had been defective. The lower court denied relief, prompting this appeal.
Appellant contends that his guilty plea colloquy was defective and thus his plea not understandingly tendered because he was not informed of all the elements of robbery. Before a court may accept a plea of guilty, it must determine in an on-the-record colloquy that the plea is being voluntarily and understandingly tendered. Pa.R.Crim.P. 319(a); Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971). "[F]or an examination to demonstrate a defendant's understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms." Commonwealth v. Ingram, 455 Pa. 198, 203-04, 316 A.2d 77, 80 (1974). Accord, Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976). "The failure to outline the nature of the offense to [a defendant] on the record destroy[s] the knowing and intelligent nature of [his] guilty pleas [and] constitute[s] a manifest injustice which mandate[s] that [the defendant] be permitted to withdraw his pleas of guilty." Commonwealth v. Copper, 273 Pa. Superior Ct. 393, 397, 417 A.2d 706, 708 (1980). During the present colloquy, appellant was instructed that
the government is charging at CC7804611 the crime of robbery. The government is alleging that on or about July 22 of 1978 you entered the A & P store and put store employees in threat of immediate serious bodily harm at the A & P store in the South Hills Village. Do you understand that that is a felony of the first degree and if found guilty you could receive a sentence of up to ten to twenty years on that.
[ 309 Pa. Super. Page 395]
(N.T. April 15, 1980 at 3-4). The crime outlined to appellant in the colloquy was not robbery but rather recklessly endangering another person.*fn2 "A person is guilty of robbery if, in the course of committing a theft, he . . . threatens another with or intentionally puts him in fear of immediate serious bodily injury." 18 Pa.C.S.A. § 3701(a)(1)(ii). (Emphasis added). Appellant was never informed that theft or attempted theft is a necessary element of the crime, ...