No. 2279 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, No. 81-08-498-502.
Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Charles A. Cunningham, Philadelphia, for appellee.
Rowley, Popovich and Cercone, JJ.
[ 332 Pa. Super. Page 178]
On July 10, 1981, appellee was charged with attempted murder, criminal conspiracy, simple and aggravated assault, possession of an instrument of crime and recklessly endangering another person, as a result of a vicious assault on an innocent victim that led to extensive personal injuries, some visible, some permanent. Appellee entered a counseled plea of guilty on January 7, 1982. Appellee was initially sentenced on March 17, 1982 to two consecutive five-to-ten year periods of incarceration for attempted murder and criminal conspiracy, and to a consecutive term of two and one-half to five years for possession of an instrument of crime. Upon reconsideration of sentence on April 14, 1982,*fn1 the sentences for attempted murder and possession of an instrument of crime were vacated. The sentence for criminal conspiracy was allowed to stand and appellee was also sentenced to a consecutive five-to-ten year period of incarceration for aggravated assault. Appellee then presented a motion to withdraw his guilty plea on May 14, 1982, on the ground that the on-the-record colloquy was defective for failure to adequately address the presumption of innocence. The
[ 332 Pa. Super. Page 179]
motion to withdraw the guilty plea was granted on July 7, 1982, and the Commonwealth has filed this direct appeal.
The Commonwealth argues that the guilty plea colloquy was not defective and that the lower court erred in allowing its post-sentence withdrawal merely because appellee's counsel did not use the words "presumption of innocence" in the plea colloquy. The Commonwealth maintains that the defendant failed to present evidence demonstrating a manifest injustice, the standard for post-sentence plea withdrawal. An examination of the comprehensive colloquy and the following relevant information conveyed to appellee regarding the presumption of innocence reveals that appellee's plea was knowing, voluntary and intelligent. Appellee's counsel advised appellee of the following:
MR. CUNNINGHAM: Now you would not have to present any evidence whatsoever during your trial. The burden of proof would be on the Commonwealth, and the Commonwealth alone. Do you understand that?
MR. CUNNINGHAM: And, that the Commonwealth would have to prove your guilt to each and every one of those twelve jurors beyond a reasonable doubt. Do you understand that?
MR. CUNNINGHAM: So that if just one of those jurors did not believe that you were guilty, you could not be found ...