No. 80-1-48, Appeal from the Order entered February 4, 1980 in the Court of Common Pleas of the Fifth Judicial District, Criminal Division at No. 7500010A and No. 7500106A.
John H. Corbett, Jr., Paulette J. Balogh, Asst. Public Defenders, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy Dist. Atty., Kathryn L. Simpson, Kemal Alexander Mericli, Asst. Dist. Attys., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., files a concurring opinion in which O'Brien, C. J., and Nix, J., join. McDermott, J., joins the majority opinion and files a concurring opinion.
Daniel Lee Shaffer appeals from denial of a petition to withdraw pleas of guilty to murder of the third degree, carrying a firearm without a license and committing a crime with a firearm, Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973, 18 P.S. §§ 2502(c), 6106 and 6103 respectively. Appellant is serving a sentence of ten to twenty years for murder of the third degree, and two-and-a-half
to five years on each of the firearms violations, each sentence to run consecutively.
In January, 1975, appellant was indicted by grand jury for murder of the first degree, voluntary manslaughter, carrying a firearm without a license and committing a crime with a firearm in the shooting death of his ex-girlfriend Antonia Bougher on December 22, 1974. Prior to trial there was an attempt by defense counsel and the office of the district attorney to reach a plea bargain on the case. The district attorney sought a plea of guilty to murder of the third degree and to one count of each of the firearms violations in return for a sentence recommendation of fifteen to thirty years on all charges while appellant sought a sentence recommendation of ten to twenty years on all charges. Because they were unable to reach an agreement on the sentence, appellant entered a plea of not guilty and waived his right to a jury trial, electing instead to be tried by a judge. Trial commenced the same day, July 14, 1975.
The Commonwealth produced overwhelming evidence of guilt of murder of the first degree and the firearms violations. Testimony established that the appellant, after rendering the victim's car inoperable by dismantling the distributor, waited for her to leave a girlfriend's home. He then shot her twice with a .357 Magnum which he was unlicensed to carry. As she lay wounded, he removed from her purse a .22 caliber Derringer he had given her and shot her with it, at close range, three times in the head, killing her instantaneously. He was apprehended immediately and detained until taken into police custody. At trial, several eyewitnesses who knew appellant testified to his prior repeated statements that he would "have to kill her" or that he was "going to kill her."
On the second day of trial, after the Commonwealth rested its case and the defense called two witnesses, the appellant, pursuant to an agreement with the district attorney, requested the court's permission to withdraw his plea of not guilty and to enter a plea of guilty to murder of the third degree, carrying a firearm without a license and committing
a crime with a firearm. The court permitted withdrawal of the prior plea and conducted a colloquy to determine the voluntariness of the tendered plea, which was accepted. The court, however, did not explain to appellant the elements of the crimes to which the guilty plea was entered. Appellant was sentenced in accordance with the agreement with the district attorney, the same offer made to appellant before trial. Appellant filed a Petition for Reduction of Sentence which was denied by the sentencing judge on January 16, 1976. No appeal was taken. On April 11, 1979, appellant filed a pro se Petition to Withdraw Plea of Guilty. After hearing and argument, where petitioner was represented by counsel, the court denied the relief requested. This appeal followed.*fn1
Appellant's sole contention is that, because the on-the-record colloquy preceding the trial court's acceptance of the plea did not satisfy the mandate of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) (herein Ingram) that the court explain to the defendant the elements of the crimes on the record during a plea colloquy, the conviction entered must be reversed and a new trial ordered. It is conceded that the colloquy was adequate in all other respects.
In considering whether the lower court abused its discretion in not permitting withdrawal of the plea it must be emphasized that there is an important distinction between presentencing attempts to withdraw a guilty plea and post-sentencing attempts. The standard for allowing withdrawal of a guilty plea prior to sentence was articulated in Commonwealth v. ...