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COMMONWEALTH PENNSYLVANIA v. ROGER J. KAY (07/20/84)

filed: July 20, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
ROGER J. KAY, D.O., APPELLANT



No. 538 Pittsburgh, 1983, Appeal from the March 21, 1983 Judgment of Sentence, and Orders entered March 31, 1983, Court of Common Pleas, Erie County, Criminal Division at No. 1800 of 1981.

COUNSEL

David Jones, Pittsburgh, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Rowley, Johnson and Popovich, JJ.

Author: Johnson

[ 330 Pa. Super. Page 92]

Appellant Roger Kay, an osteopathic physician, was charged with criminal solicitation to commit murder*fn1 and criminal conspiracy*fn2 based upon his role in an attempt to have murdered another local physician at the hospital where the appellant was employed. Appellant had arranged with another associate at the hospital for a Tony Magliano to carry out the "contract killing". On October 30, 1981, the date of appellant's arrest, he was informed that Tony Magliano was in reality an FBI undercover agent, who was later identified as agent Wayne Manis. A number of personal contacts and phone conversations between the appellant and "Tony Magliano" were the subject of electronic surveillance and had been recorded.

The matter was initially scheduled for trial in March of 1982 in the Erie County Court of Common Pleas, but it was continued at the request of appellant's trial counsel. Before the trial was rescheduled, the appellant entered a guilty plea to the solicitation charge on May 3, 1982. Sentencing was postponed throughout 1982, and the initial sentencing judge recused himself on February 25, 1983.

Appellant's trial counsel withdrew from the case at appellant's request. Appellant's present counsel filed a petition to withdraw the guilty plea on March 18, 1983, three days prior to the scheduled sentencing hearing. At the hearing on March 21, 1983, the trial court judge denied appellant's motion to withdraw his guilty plea and sentenced the appellant to a four to ten year term of imprisonment. Appellant's counsel then filed on March 30, 1983 a post-sentence

[ 330 Pa. Super. Page 93]

    motion to withdraw the guilty plea and a motion to modify sentence. These motions were denied by the trial judge on March 31, 1983. The present appeal follows the denial of appellant's motions to withdraw the guilty plea and to reduce the sentence.

The appellant presents four arguments four our review. First, he contends the trial court erred in not allowing him to withdraw his guilty plea prior to sentencing because he did not enter it knowingly and intelligently and because there is inadequate record evidence to indicate he did. A pre-sentence motion to withdraw a guilty plea will be liberally allowed if the appellant demonstrates "fair and just" reason for the withdrawal, unless the prosecution has suffered substantial prejudice by its reliance on the guilty plea. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Campbell, 309 Pa. Super. 214, 455 A.2d 126 (1983).

What plea to enter must be a decision by the accused which is voluntarily and intelligently made. Commonwealth v. Forbes, supra. Pa.R.Crim.P. 319 outlines a procedure to be followed that will assure the guilty plea is voluntarily tendered. No more than the inquiries outlined in Pa.R.Crim.P. 319 is required. Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984).

Our review of the guilty plea proceedings that occurred on May 3, 1982 convinces us that the record completely refutes appellant's allegations. This proceeding more than adequately met the requirements of Pa.R.Crim.P. 319. All that preceded the entry of appellant's plea fully apprised him of the nature of the charges and the rights available to him. Nothing ...


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