Commonwealth v. Bruno

416 A.2d 1039, 272 Pa. Super. 562, 1979 Pa. Super. LEXIS 3300
Superior Court of Pennsylvania·Decided December 12, 1979·No. 412·Published·Cited by 6 cases

Opinions

PRICE, Judge:

Appellant entered a plea of nolo contendere to charges of theft,1 forgery,2 and uttering a forged instrument.3 After the Commonwealth presented testimony establishing a factual basis for the crimes, the trial court accepted appellant’s plea. Sentence was suspended, and appellant was placed on probation for a period of two years and ordered to make restitution and to pay the costs of prosecution. No direct appeal was taken. This appeal is from an order4 of the court of common pleas denying appellant relief on his peti[564] tion filed pursuant to the Post Conviction Hearing Act5 (PCHA). On appeal, appellant contends that: the testimony of one Harold DeMino (a convicted felon whom appellant claims was the guilty party in the crimes charged) was after-discovered evidence entitling appellant to a new trial; his plea of nolo contendere was not intelligently and voluntarily entered; and that the failure of counsel to inform him of the consequences of his plea, particularly with respect to a term of probation that he was serving for previous offenses, rendered him ineffective. We agree with appellant’s latter two contentions, and therefore remand the case to the court of common pleas for a new trial.6

The pertinent facts are as follows. On April 20, 1974, appellant entered Palmer’s Drugstore in West Deer Township, Allegheny County, and cashed a payroll check for $178.36 from the Fort Pitt Packaging Company.7 Appellant presented the check to Mr. Daniel Yanicko, pharmacist for Palmer’s Drugstore, and offered as identification a driver’s license bearing the name of Stanley Zelc. A week after its presentation, the check was returned to Mr. Yanicko by his bank and was marked “no account.” Mr. Yanicko reported the incident to Allegheny County detectives. After Mr. Yanicko identified appellant from a set of police photographs, appellant was apprehended. Pursuant to a warrant, a search of appellant’s home was subsequently conducted, [565] and the police discovered eleven other checks, all from the same series as the one previously cashed and all bearing the name of Fort Pitt Packaging Company.

At trial, after Detective Donald Durochia testified to the aforementioned facts, appellant’s counsel announced that appellant had decided to change his plea from not guilty to nolo contendere. A “colloquy” was conducted, but when the Commonwealth protested that a sufficient factual basis for the crime had not as yet been established, the court called a recess to allow appellant to consult with counsel concerning the plea. Court was reconvened an hour later, and after Mr. Yanicko testified, counsel renewed appellant’s plea, and it was accepted by the court.

On February 23, 1976, appellant filed a PCHA petition alleging basically the same claims he makes in the instant appeal. After a hearing on September 13,1976, this petition was denied without prejudice to appellant to file a petition to withdraw his plea of nolo contendere. It was subsequently agreed that appellant’s PCHA petition would substitute as a petition to withdraw his plea. A hearing was conducted on February 22, 1977, and appellant was denied permission to withdraw his plea per order of the Honorable James F. Clarke, dated March 21, 1977. Appellant filed a petition to this court to remand to the trial court for the taking of the testimony of Harold DeMino. Commonwealth v. Bruno, No. 698 April Term, 1977. That petition was granted on July 18, 1977. The trial court heard Mr. DeMino’s testimony and subsequently issued an order stating that its opinion remained unchanged and denying appellant’s petition to withdraw his plea of nolo contendere.

Our supreme court has held that a valid guilty plea may not be accepted in the absence of a demonstration of defendant’s understanding of the charges. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973).

“In order to demonstrate that a defendant possesses such understanding, he certainly must be told more than just that he has been charged with murder or robbery, for example. While such terms clearly connote some meaning [566] to the layman, this meaning does not always embrace the basic legal elements of the crime. If this were not the case, there would be no need for instructions to a jury on such points, for certainly, an average defendant cannot be presumed to understand more than an average juror. Thus, for an examination to demonstrate a defendant's understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms. Our decision in Commonwealth v. Campbell, supra and Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973), both of which dealt with extensive colloquys on this point, imply that such examination is mandatory. We now expressly hold that there is such a requirement.” Commonwealth v. Ingram, supra, 455 Pa. at 203-04, 316 A.2d at 80. (emphasis in original).

In addition, Pa.R.Crim.P. 319(a) precludes a court from accepting a plea unless a colloquy appears on record establishing that the plea is knowingly and understandingly made. The Comment to the Rule states that at a minimum the judge must ask questions to elicit the following information.

“(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he has the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?”

Our supreme court has stressed that failure to satisfy the minimal requirements as set forth in the Comment to Rule 319 will result in reversal.

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Commonwealth v. Bruno, 416 A.2d 1039, 272 Pa. Super. 562, 1979 Pa. Super. LEXIS 3300 (Pa. Ct. App. 1979).

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Commonwealth v. Bruno
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