No. 890 Pittsburgh 1981, Appeal from the PCHA Order of June 19, 1981 in the Court of Common Pleas of Cambria County, Criminal Division at No. 0289, 1980.
Russell J. Heiple, Johnstown, for appellant.
D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ. Johnson, J., files a concurring and dissenting opinion.
[ 314 Pa. Super. Page 246]
This is an appeal from judgment of sentence for burglary. Appellant argues that the lower court (1) lacked jurisdiction to accept his guilty plea; (2) erred in refusing to allow him to withdraw his guilty plea; (3) imposed an illegal and excessive sentence; and (4) denied him effective assistance of counsel. We affirm.
Appellant was arrested on March 17, 1980, and charged with criminal attempt,*fn1 criminal mischief,*fn2 and burglary.*fn3
[ 314 Pa. Super. Page 247]
He pleaded guilty to burglary and the Commonwealth moved to have the remaining charges nol prossed because they merged with the burglary. N.T. 5/6/80 at 1. On March 9, 1981, the lower court sentenced appellant to six to twelve years in prison, the sentence to be served concurrently with another sentence that had been earlier imposed and that appellant was serving. Motions to modify or vacate the sentence were denied, and this appeal followed.
Appellant first argues that the lower court lacked jurisdiction to accept his guilty plea because when his plea was accepted, "pre-trial motions" were pending. Although it is true that appellant did complain during the course of his guilty plea hearing that he had not been allowed to be present at his arraignment or at a pre-trial conference, N.T. 5/6/80 at 10, these complaints did not rise to the level of pre-trial motions. Even if they had, they would not have deprived the lower court of jurisdiction. Appellant's reliance on Commonwealth v. Borris, 280 Pa. Super. 369, 421 A.2d 767 (1980), is misplaced. In Borris the lower court accepted a guilty plea during the pendency of an appeal concerning pre-trial motions. Except in certain limited instances, an appeal does oust the lower court's jurisdiction. Pa.R.A.P. 1701(a).
Appellant's argument is in any event foreclosed by his guilty plea. Before accepting his plea, the lower court advised appellant that by pleading, he would waive his right to argue that he should have been allowed to be present at his arraignment and at the pre-trial conference, and appellant responded that he understood that but was going to plead guilty anyway. N.T. 5/6/80 at 10-16. See also Commonwealth v. Arndt, 269 Pa. Super. 578, 410 A.2d 852 (1979) (defendant who pleads guilty waives right to challenge anything but legality of sentence and voluntariness of plea).
Appellant next argues that the lower court abused its discretion in denying his pre-sentence motion to withdraw
[ 314 Pa. Super. Page 248]
his guilty plea. It is true, as appellant argues, that requests to withdraw guilty pleas prior to sentencing "are to be liberally allowed [ ] for any 'fair and just' reason unless the prosecution has suffered substantial prejudice." Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975). See also Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). It is also true that in Commonwealth v. Boofer, 248 Pa. Super. 431, 375 A.2d 173 (1977), cited by appellant, this court held that a critical consideration in the decision whether to allow withdrawal of a guilty plea is the presence or lack of prejudice to the Commonwealth. But appellant fails to note that in Boofer the defendant asserted his innocence and that we found that to be a "fair and just reason" for permitting him to withdraw his guilty plea. Here, by contrast, appellant not only did not assert his innocence, but his guilty plea colloquy is replete with unequivocal admissions of guilt. We have not overlooked the fact that at the hearing on appellant's motion to withdraw his guilty plea, N.T. 2/9/81 at 9-11, appellant testified that upon further reflection, and after discussion of his case with fellow inmates, he thought he had a "possible defense" to the burglary charge. The suggested defense was that his statement to the police might have been inadmissible because he "was on drugs and . . . under extreme pain" when he gave the statement, N.T. 9; that tools found on the roof "were in no way connected with" him, N.T. 10; and that "there is a possibility ...