NOS, 866 AND 932 PITTSBURGH 1981, Appeal from the Order and the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County, at Nos. 1879 and 1880 of 1980.
Joseph P. Martone, Erie, for appellant.
Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
Rowley, Montemuro and Van der Voort, JJ.
[ 310 Pa. Super. Page 342]
Appellant was charged with thirteen violations of the Crimes Code, 18 Pa.C.S. § 101 et seq., including rape,
[ 310 Pa. Super. Page 343]
involuntary deviate sexual intercourse and kidnapping, arising from the repeated sexual attacks upon a young woman. After the prosecution had presented approximately half of its case to the jury, appellant entered a guilty plea to ten of the thirteen counts.*fn1 The plea was accepted and the court ordered a pre-sentence investigation be performed. Prior to sentencing, appellant filed an application to withdraw his previously entered guilty plea. The lower court denied the application and imposed an aggregate sentence of 55 to 122 years. A second request to withdraw the plea and to modify the sentence was refused. This appeal followed.
Appellant raises four contentions in this court; we will address them in an order different from that of the appellant.
I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW THE DEFENDANT TO WITHDRAW HIS GUILTY PLEA BASED ON THE POSSIBILITY THAT THE COURT-ORDERED PSYCHIATRIST WOULD CHANGE HIS OPINION IN LIGHT OF ADDITIONAL INFORMATION.
Appellant argues that in the period between the entry of his plea and the imposition of sentence, the examining psychiatrist received prior records concerning appellant's mental state. The results of one test indicated that in certain circumstances appellant's actions could be beyond his control. The doctor suggested additional testing to determine appellant's state of mind at the time of the incident. Thus appellant claims he was entitled to withdraw his guilty plea to allow him to consider presenting an insanity defense.
Unfortunately for appellant, the law of this Commonwealth is not in accordance with his position. While a pre-sentence attempt to withdraw a guilty plea should be liberally allowed, when the case has proceeded to trial the
[ 310 Pa. Super. Page 344]
Commonwealth has been, in several instances, deemed prejudiced by the withdrawal of the plea. The trial court will not be held to have abused its discretion in failing to grant the leave. Commonwealth v. Whelan, 481 Pa. 418, 392 A.2d 1362 (1978); Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973); Commonwealth v. Ammon, 275 Pa. Superior Ct. 324, 418 A.2d 744 (1980); Commonwealth v. Champion, 264 Pa. Superior Ct. 605, 401 A.2d 760 (1979). Two cases are worthy of further discussion.
In Champion, Id., the jury had been impanelled when the defendant attempted to withdraw his plea. This court found that the lower court had abused its discretion in refusing the motion. The panel of this court while espousing the requirement that a defendant must show "compelling reasons" for withdrawing a plea at this stage of the pleadings, found the standard was met as the plea itself was not knowingly and intelligently entered. The defendant had been incorrectly advised that his challenge based on Rule 1100, Pa.R.Crim.P. would be preserved, and he was not advised of the presumption of innocence. Here appellant's plea was knowingly and intelligently entered (See issue number 2, supra). Of more interest is Commonwealth v. Reider, 255 Pa. Superior Ct. 163, 386 A.2d 559 (1978) which appellant improperly relies on. Reider involved a plea entered prior to commencement of trial. There the defendant attempted to withdraw the plea in circumstances very similar to those at hand. Prior to the plea a psychiatric evaluation indicated the defendant was sane; prior to sentencing further psychiatric observation showed the defendant to suffer from paranoia. The lower court refused to permit the plea to be withdrawn. This court found the change in mental evaluations did not amount to a "fair and just" reason since the defendant was aware, based on his prior history, of a possible insanity defense. However, as the Commonwealth would not be prejudiced by the withdrawal, (it had not proceeded to trial,) the court should have allowed appellant to withdraw his plea.
[ 310 Pa. Super. Page 345]
Here, appellant knew of his prior mental history but did not attempt to withdraw the plea until the Commonwealth was about to put the victim on the stand. In these circumstances, we find the prosecution would be severely ...