NO. 45 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, September Term, Nos. 1829-1837 of 1975.
Brian J. O'Neill, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, McEwen and Cirillo, JJ.
[ 307 Pa. Super. Page 314]
We here review the claims of an appellant who entered a negotiated plea of guilty to charges of third degree murder and robbery and was sentenced to a term of from ten to twenty years for murder of a storekeeper during an armed robbery and to a concurrent term of two and one-half to five years for the robbery. Appellant took no direct appeal but filed a petition for relief pursuant to the Post Conviction Hearing Act (hereinafter PCHA).*fn1 The distinguished Philadelphia County Common Pleas Court Judge Edward J. Blake conducted hearings on the petition and denied the relief sought. We affirm.
The quite compelling brief of appellant poses the following issues in the Statement of Questions Involved:
Was the guilty plea colloquy defective?
Did the trial judge err in refusing to allow appellant to withdraw his guilty plea prior to sentencing?
[ 307 Pa. Super. Page 315]
Did appellant's failure to file a petition to withdraw his guilty plea result in a waiver of his right to challenge the validity of this guilty plea under the Post-Conviction Hearing Act?
Was appellant denied the right to a direct appeal when trial counsel failed to file an appeal after he had told appellant that he would do so?
Since we have considered and will here discuss and rule upon the substantive issues presented by the first two questions, we need not discuss the latter two questions that relate to the rights of appellant to have the substantive questions studied in this appeal.
The record reveals that during the afternoon of August 29, 1975, Arthur Wilson, married and 70 years of age, was murdered in his shop at 2841 Girard Avenue, Philadelphia. Appellant, on March 1, 1976, pleaded guilty to murder in the third degree and pleaded guilty to robbery before the learned Common Pleas Court Judge, now the distinguished Commonwealth Court Judge, Robert W. Williams, Jr. The Commonwealth, during that guilty plea hearing, provided a summary of the case to the court which included the advice that the partner of the murder victim was an eyewitness to the robbery and that this partner would testify that:
[O]n August 29, 1975 at approximately 2:30 p.m. he was co-owner with Mr. Arthur Wilson of the Robinson Clothing Store, 2841 West Girard Avenue.
At that time two individuals came into the store, one of which he would identify as the defendant. The defendant went to the counter and asked for a shirt. He was given a shirt in a cellophane wrapper. This defendant then pulled out what turned out to be a starter pistol and announced a holdup. The other defendant, which is Allan Smith, pulled out a gun and also participated in the holdup. The owner, Arthur Wilson, took his .25 calibre automatic and shot one round at the defendant, Allan Smith. Allan Smith then shot four times, one of which bullets caught Arthur Wilson in the chest, and that is the bullet wound from which he died.
[ 307 Pa. Super. Page 316]
The defendant was arrested on the 4th of September. Defendant gave a statement admitting his participation in the robbery of the store, and the fact that Allan Smith shot and killed the decedent. The defendant then tape recorded that statement.
Fingerprints were taken from the shirt in the cellophane wrapper which were matched and positively identified as the fingerprints of this defendant when he was arrested. (N.T. 2/27/76, pp. 24-26).
The imposition of sentence was continued so as to provide for the completion of a pre-sentence investigation report. While the court commenced a sentencing hearing on June 8, 1976, the actual imposition of sentence was further deferred until after the co-defendant had been sentenced. After a further hearing on July 7, 1976, judgment of sentence was imposed. It was not until ten months later that appellant initiated the instant PCHA proceedings.
Appellant contends the guilty plea colloquy did not include the statement that the verdict of the jury to convict must be unanimous. The record confirms the colloquy did not include such a statement. It is to be noted, however, that appellant does not assert either (1) that this omission caused him to enter the plea or (2) that his waiver of a jury trial was not a knowing and intelligent waiver.
The pertinent Pennsylvania Rules of Criminal Procedure are two, namely, Rule 319(a) and Rule 1101, the relevant parts of which provide:
Rule 319. Pleas and Plea Agreements.
(a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record. If the defendant shall refuse
[ 307 Pa. Super. Page 317]
to plead, the court shall enter a plea of not guilty on ...