No. 186 Pittsburgh, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lawrence County, No. 348 of 1979.
Richard Audino, New Castle, for appellant.
William M. Panella, District Attorney, New Castle, for Commonwealth, appellee.
Wieand, Johnson and Hester, JJ.
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During the early morning of June 13, 1979, Floyd Monaco shot and killed Albert Izzo, a plainclothes state policeman.
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Monaco entered a plea of guilty to murder generally and, after hearing before the Honorable J. Quint Salmon, specially presiding, was adjudged guilty of murder in the first degree. A subsequent motion to withdraw the plea of guilty was denied, and Monaco was sentenced to prison for life. On direct appeal from the judgment of sentence, Monaco contends (1) that the trial court erred in denying his motion to withdraw the plea of guilty; (2) that the evidence was insufficient to sustain a finding of murder in the first degree; and (3) that the trial court erred in denying a pre-trial motion for change of venue. We find no merit in these contentions and, accordingly, affirm the judgment of sentence.
A degree of guilt hearing commenced on July 7, 1980 and was concluded on July 28, 1980. The evidence produced during the hearing disclosed that appellant, together with Joseph Querriera and Joseph Frank, Jr., had been involved in a drug dealing operation centered in New Castle, Lawrence County. This drug operation had been under investigation by a "strike force" made up of law enforcement officers from Pennsylvania and Ohio. In the early morning of June 13, 1979, appellant and Querriera were making a delivery of approximately fifty pounds of marijuana to the rear entrance of Frank's apartment in New Castle. Appellant and Querriera waited at their car while a purchase was negotiated with Frank by a group of interested buyers, including Trooper Daniel Haggerty, an undercover state policeman. On the pretext of retrieving money from his car, Haggerty left Frank's apartment to signal members of the strike force to move in. Trooper Izzo, in plain clothes, was a member of the strike force. When he and other policemen advanced, shouting "police" and "freeze", appellant turned around slowly, faced the advancing officers with a .357 magnum revolver, and shot Izzo in the abdomen when he was approximately ten or twelve feet distant. Appellant then turned and ran. He continued to fire at the police, however, who returned the fire. A second bullet entered Izzo's back after ricocheting off the wheel of a
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parked car. Izzo died several hours later as a result of shock and trauma caused by the bullet wounds. At the hearing, medical evidence did not demonstrate which of the two bullets had been the primary cause of death. Ballistics evidence confirmed that the bullet which struck Izzo in the abdomen had been fired from appellant's gun. The source of the second bullet could not be ascertained with the same precision because, in ricocheting, the bullet had become so misshapen as to prevent certainty in determining ballistically its source. Ballistics evidence showed, nevertheless, that the bullet could not have been fired by any gun carried by police but could have been fired by appellant's .357 magnum. The evidence did not disclose that shots had been fired by anyone other than appellant and the police officers.
At the close of the evidence on July 28, but before closing arguments of counsel, appellant filed a written motion to withdraw his plea of guilty. Following the closing arguments of counsel but before the trial court rendered a decision, appellant filed, on August 18, a counseled motion for leave to withdraw his earlier request to withdraw the plea of guilty. A hearing was held on September 9; and on September 18, the court entered an order allowing appellant to revoke the motion to withdraw his plea of guilty. On February 19, 1981, the court rendered its decision finding appellant guilty of murder in the first degree. After that decision had been filed but prior to sentencing, appellant again moved to withdraw his guilty plea. This request was denied.
The standard for permitting a defendant to withdraw a plea of guilty varies according to the point in the proceedings at which the motion to withdraw is made. In Commonwealth v. Lesko, 502 Pa. ...