No. 42 W. D. Appeal Docket 1983, Appeal from the Order of the Superior Court of Pennsylvania, No. 839, Pittsburgh 1981, dated December 17, 1982, reversing the Order entered in the Allegheny County Court of Common Pleas, Criminal Division, at No. CC7804611A, on August 7, 1981, denying appellee's Motion to Withdraw Guilty Plea, Pa. Super. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., joins this Opinion and filed a separate concurring opinion. Nix, C.j., filed a concurring opinion. Zappala, J., filed a dissenting opinion.
Appellee, Regis Schultz, was arrested and charged with robbery, recklessly endangering another person and three weapons offenses after attempting to hold up a grocery store. Pursuant to a negotiated plea, appellee pled guilty to robbery and recklessly endangering and the Commonwealth nol prossed the weapons charges. A guilty plea colloquy was conducted before the Court of Common Pleas of Allegheny County, following which the court accepted the plea and sentenced appellee to ten to twenty years imprisonment for robbery; the court suspended the sentence for recklessly endangering another person.
Appellee subsequently filed a motion to withdraw his guilty plea, claiming that the guilty plea colloquy did not contain an explanation that theft is an element of robbery,*fn1
and thus his plea did not constitute a knowing and intelligent waiver of his right to a trial on the merits. After a hearing on appellee's motion to withdraw the guilty plea, the lower court found that it had, in fact, been knowingly and intelligently entered and therefore denied appellee's motion to withdraw the plea. Appellee appealed to the Superior Court which, relying on Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) (herein Ingram), held that "[appellee] was never informed that theft or attempted theft is a necessary element of the crime, and, thus, the court could not determine whether [appellee] knowingly and intelligently entered the plea." Commonwealth v. Schultz, 309 Pa. Super. 392, 395, 455 A.2d 667, 668 (1982). The Superior Court therefore reversed the judgment of sentence and granted appellee a new trial. We granted the Commonwealth's petition for allowance of appeal to this Court.
It is well established that after sentence has been imposed, a defendant seeking to withdraw his guilty plea must demonstrate that a manifest injustice has occurred justifying withdrawal. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). In Commonwealth v. Rosmon, 477 Pa. 540, 542, 384 A.2d 1221, 1222 (1978), we recognized that a manifest injustice occurs if a guilty plea is entered by a defendant who lacks full knowledge and understanding of the charge against him. Under Ingram, a defendant's knowledge and understanding of the charge was tested solely by reference to the on-the-record guilty plea colloquy.*fn2 If the colloquy did not demonstrate that all of the elements of the crime charged had been outlined in understandable terms, and that the defendant had, in fact, understood the charge, the guilty plea was deemed to be invalid. Thus, applying Ingram, the Superior Court held
that appellee's guilty plea was rendered invalid by the absence from the guilty plea colloquy of an explanation that theft is an element of robbery.
The per se approach of Ingram, however, has been abrogated by subsequent decisions of this Court. Commonwealth v. Shaffer, 498 Pa. 342, 350, 446 A.2d 591, 595 (1982) (herein Shaffer), held that even if the guilty plea colloquy lacks an explanation of the elements of the crime charged, no manifest injustice occurs if the circumstances surrounding the entry of the plea indicate that the defendant understood the nature of the charge against him. Although Shaffer had been decided prior to the Superior Court's decision in this case, the Superior Court read Shaffer as creating only a limited exception to Ingram's per se approach; i.e., to be applied only in fact situations similar to that in Shaffer (the defendant pled guilty after the Commonwealth had presented its entire case).
The Superior Court's restrictive reading of Shaffer is erroneous. Commonwealth v. Martinez, 499 Pa. 417, 420, 453 A.2d 940, 942 (1982), makes it clear that the "totality of the circumstances" test adopted in Shaffer is to be applied in every case in which a defendant asserts that his guilty plea was entered without knowledge and understanding of the charge against him. Therefore, in addressing appellee's claim that his guilty plea was not entered knowingly and intelligently, a court must review all of the circumstances surrounding the entry of that plea.
The evidence presented by counsel for the Commonwealth at the plea proceeding revealed the following. Armed with a gun, appellee attempted to rob a grocery store. A struggle arose and appellee was subdued by a bystander and arrested at the scene of the robbery. That bystander, and a number of other eyewitnesses, were prepared to testify against appellee at trial. Because of the ...