No. 998 PITTSBURGH, 1981, No. 568 PITTSBURGH, 1982, Appeal from the Orders and Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Armstrong County, Nos. 1981-0019-Crim. & 1981-0050, 0051, 0052, 0053, 0054-Crim.
Robert Alan Cinpinski, Public Defender, Kittanning, for appellant.
George R. Kepple, District Attorney, Kittanning, for Commonwealth, appellee.
Cercone, President Judge, and Spaeth and Hester, JJ.
[ 320 Pa. Super. Page 476]
On March 6, 1981, before the Court of Common Pleas of Armstrong County, appellant, Ricky Lynn McCall, entered a plea of guilty to charges of rape, robbery and burglary filed at No. 1981-0019. These charges were filed as a result of appellant's forcible entry in early January, 1981, into the residence of Elsie Shearer, situate at Parker, Armstrong County, Pennsylvania, his sexual assault of Connie Suttle, a 26-year old retarded female, within the Shearer residence, and his removal therefrom of a piggy bank containing $40.00.
On March 11, 1981, before the same court, appellant further pled guilty to charges of escape and simple assault stemming from his escape with three other prisoners on January 17, 1981, from the Armstrong County Jail, where he was detained pending prosecution of the rape, robbery and burglary charges. Also, on March 11, 1981, he entered a plea of guilty to charges of burglary, robbery and theft which were instituted as the result of his unauthorized
[ 320 Pa. Super. Page 477]
taking of a 1980 Chevrolet Citation, a .22 caliber rifle, ammunition and $31.00 in cash from the residence of Chester Choncek, following his escape from jail earlier that day. These charges, to which appellant pled guilty on March 11, 1981, were filed at Nos. 1981-0050, 1981-0051, 1981-0052, 1981-0053 and 1981-0054.
Two months following the entry of his guilty pleas, and prior to sentencing, appellant filed a Motion and Amended Motion to Withdraw his pleas of guilty to rape, robbery and burglary filed at No. 1981-0019, and to escape, simple assault, robbery, burglary and theft filed at Nos. 1981-0050 through 1981-0054. At the hearing on these motions, appellant orally withdrew his Amended Motion to Withdraw his plea to the charges filed at Nos. 1981-0050 through 1981-0054; consequently, the lower court was concerned only with his Motion to Withdraw his plea to rape, robbery and burglary filed at No. 1981-0019. Following the hearing and both oral and written argument, his remaining Motion was denied and sentencing was scheduled.
On September 10, 1981, appellant was sentenced for the offenses of rape, robbery and burglary (No. 1981-0019) to a term of imprisonment of not less than five nor more than twenty years, said term to run concurrently with any pre-existing sentence or sentences. He was also sentenced on that date for the crimes of burglary, robbery, theft, escape and simple assault (Nos. 1981-0050 through 1981-0054) to an identical term of not less than five nor more than twenty years. Both five to twenty-year terms were to run consecutively.
Immediately following sentencing, appellant filed a Motion Challenging his Guilty Plea to rape, robbery and burglary at No. 1981-0019, and a Motion to Modify Sentence at Nos. 1981-0019 and 1981-0050 through 1981-0054. Prior to the trial court's disposition of these Motions, appellant filed a Notice of Appeal from the Order, dated September 1, 1981, denying his Motion and Amended Motion to Withdraw for fear that the thirty-day appeal period would not be tolled by the later Motions challenging the guilty pleas and to modify sentence.
[ 320 Pa. Super. Page 478]
By Order of Court, dated February 10, 1982, appellant's Motions Challenging the Guilty Plea and to Modify Sentence were denied. A timely appeal was filed from this Order also. Due to the fact that both appeals were taken from Orders denying withdrawal of the same guilty plea and denying modification of sentence, appellant was instructed to file this Amended Notice of Appeal in order to consolidate the earlier Notices of Appeal.
Appellant argues first that the trial court erred in refusing to approve the withdrawal of his plea of guilty to rape, robbery and burglary at No. 1981-0019. According to appellant, his insistence on his innocence, his desire to exercise his right to a jury trial, the infliction of no prejudice on the Commonwealth as a result of the withdrawal of his guilty plea and the fact that he sought to withdraw his plea prior to sentencing, are justifiable reasons for reversal.
The Pennsylvania Supreme Court in Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973) stated:
It is well recognized that a pre-sentencing plea withdrawal motion and a post-sentencing plea withdrawal motion present entirely different problems. As a general rule, the guilty plea itself is 'the defendant's consent that the judgment of conviction may be entered without a trial.' Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970). Nothing remains to be done following acceptance of a valid plea save to impose sentence. Consequently, a motion to withdraw a guilty plea made before sentencing normally precedes any indication by the court of what penalty will be exacted. There is therefore little risk that the defendant will enter a guilty plea and then withdraw it before sentencing as a means of testing the court's ...