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COMMONWEALTH PENNSYLVANIA v. LEWIS MICHAEL MOLER (08/09/85)

filed: August 9, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
LEWIS MICHAEL MOLER, APPELLANT



Appeal from Order of the Court of Common Pleas, Criminal Division, of Mercer County, Nos. 495, 548, 599 Criminal, 1983.

COUNSEL

Paul R. Gettleman, Zelienople, for appellant.

Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellee.

Spaeth, President Judge, Rowley and Wieand, JJ.

Author: Wieand

[ 345 Pa. Super. Page 261]

Lewis Moler entered negotiated pleas of guilty to charges of theft by receiving stolen property, solicitation to commit murder and attempted bribery of the District Attorney of Mercer County. After he had been sentenced to consecutive terms of imprisonment totaling not less than eleven years nor more than twenty years, appellant obtained new counsel and filed a petition to withdraw his pleas of guilty. He alleged that his pleas had been entered involuntarily and unknowingly and that his guilty plea counsel had been ineffective. A motion was also filed to modify the sentence. Both motions were consolidated for hearing, after which the trial court modified the sentence for solicitation to commit murder to not less than five nor more than ten years in prison, thus reducing the total sentence to not less than ten nor more than twenty years. All other relief was denied. Moler appealed. We affirm.

A petition to withdraw a plea of guilty after sentence has been imposed will not be allowed unless there is a showing of prejudice on the order of manifest injustice. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). This requires a review of all circumstances surrounding the entry of the plea. Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982).

[ 345 Pa. Super. Page 262]

Appellant argues that his plea of guilty in the instant case was involuntary because it was entered to prevent prosecution of charges against his father. In this respect, it may be observed that appellant's father had suffered a heart attack and, as per finding of the post-trial hearing court, appellant had been informed that "all charges were being dropped against the defendant's father for medical reasons." (Finding of fact No. 14). The court further found:

11. Although the defendant would not have entered guilty pleas if the charges had not been dismissed against his father, this was not the only precipitating reason of the defendant for entering guilty pleas. The defendant also entered the guilty pleas because he wanted to get the matter over with, he was satisfied with the Judge assigned to his case, and that he was concerned as to the safety of his family if it became known that he was cooperating with authorities while in the Mercer County Jail and he acknowledged that he was guilty.

These findings are supported by evidence presented at the post-trial hearing and, therefore, are binding upon a reviewing court. Commonwealth v. Byrd, 493 Pa. 178, 183, 425 A.2d 722, 724 (1981); Commonwealth v. Mack, 313 Pa. Super. 372, 376, 459 A.2d 1276, 1278 (1983); Commonwealth v. Johnson, 310 Pa. Super. 385, 391, 456 A.2d 988, 991 (1983). During the guilty plea colloquy, moreover, appellant had assured the court that his pleas were being entered voluntarily. This appears at page 41 of the guilty plea record as follows:

THE COURT: In your mind, have [sic] there been any threat against you of any type to make you come here today to enter these guilty pleas?

MR. MOLER: No, sir.

THE COURT: Are you entering these of your own free will and accord?

MR. MOLER: Yes, sir.

THE COURT: Are there any questions on anything that you have said or that I've said to you or your attorney

[ 345 Pa. Super. Page 263]

    has said that you want cleared up before you enter these guilty pleas?

MR. MOLER: No, sir.

It seems clear, therefore, that neither appellant's concern for charges pending against his father nor the District Attorney's decision to drop them rendered appellant's guilty pleas involuntary. Neither suggested prejudice on the order of manifest injustice. The trial court correctly refused to allow appellant to withdraw his pleas of guilty for this reason.

Appellant also contends that his guilty pleas were invalid because he did not knowingly waive his right to trial by jury. The record colloquy, he contends, failed to include an instruction that he would be able to participate in the selection of the jury. The guilty plea court instructed appellant in part as follows:

You should understand that you are presumed to be innocent throughout all of this as you sit there right now, as innocent as any person in this room with those charges, and only after a full trial after twelve jurors are selected from all walks of life of Mercer County and are duly sworn and all the evidence is received and the attorneys are given the opportunity to argue their case to the jury, and the Judge charges the jury and they retire to deliberate, when the last of the twelve jurors says guilty when they come in an[d] announce their verdict in open court, then and only then are you guilty and not at any time to that. So you have what is called a presumption of innocence, and it's up to the government to prove beyond a reasonable doubt each and every element of these crimes that I am going to give to you if they expect to get a conviction. If there is a reasonable doubt as to any element of any crime, then the jury is obligated to find you not guilty of that charge. If you elect to go to trial, that is, plead not guilty, you have an absolute right to a jury trial, and you have an absolute right to take the stand and tell your side of the story, and that cannot be taken away from you . . . .

[ 345 Pa. Super. Page 264]

Appellant's counsel, moreover, had informed appellant prior to his tendering of guilty pleas that he had the right to address questions to the jury during voir dire and to challenge jurors for cause depending upon their answers. Appellant had also been instructed by trial counsel that he had the right to exercise seven peremptory challenges. (Post-trial hearing court finding No. 13).

Following examination of the total circumstances, as mandated by the Supreme Court, the conclusion is inescapable that appellant's guilty pleas were entered knowingly, intelligently and voluntarily. There were no defects in the guilty plea proceedings of sufficient magnitude to warrant a post-sentencing withdrawal of appellant's pleas. See: Commonwealth v. Klinger, 323 Pa. Super. 181, 470 A.2d 540 (1983); Commonwealth v. Harris, 311 Pa. Super. 216, 457 A.2d 572 (1983); Commonwealth v. Herberg, 306 Pa. Super. 245, 452 A.2d 536 (1982). See also: Commonwealth v. Campbell, 309 Pa. Super. 214, 455 A.2d 126 (1983). Even now, appellant does not aver his innocence.

During the guilty plea colloquy pertaining to the charge of attempted bribery of the District Attorney, Moler explained to the court that a person named Charles, who in reality was an undercover police officer, had told him he could take ...


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