Commonwealth v. Whelan

392 A.2d 1362, 481 Pa. 418, 1978 Pa. LEXIS 1104

• Court: Supreme Court of Pennsylvania
• Decided: October 27, 1978
• Docket: 169
• Status: Published

Opinions

OPINION

LARSEN, Justice.

On February 28, 1977, the trial of appellant Charles Whelan and his co-defendant, Harry S. Anderson, commenced. Appellant and his co-defendant were charged with criminal homicide. On March 7, 1977, after the Commonwealth placed its case in chief into evidence and after appellant and his co-defendant placed their cases into evidence, appellant pleaded guilty to the charge of being an accessory to murder. After conducting a colloquy with appellant to ascertain whether the guilty plea was made knowingly and voluntarily, the trial judge accepted appellant’s guilty plea. Appellant was represented by counsel at all the proceedings.

The trial of appellant’s co-defendant continued and the jury returned a verdict of not guilty as to him. On April .1, 1977, appellant filed a motion requesting permission to withdraw his guilty plea; appellant claimed that he was “less implicated” by the evidence than was his co-defendant (who was acquitted) and, therefore, “in the name of fairness”, he should be permitted to withdraw his guilty plea. After holding a hearing, the trial court denied the motion and on May 2, 1977, appellant was sentenced.¹

Appellant’s first contention is that the trial court erred in accepting his guilty plea because (appellant claims) the plea was not entered in an “intelligent, understandable, and voluntary manner”. This argument is without merit. Before the trial judge accepted appellant’s guilty plea, the trial judge conducted a colloquy² with appellant in which the trial judge explained: 1) the elements of the crime which appellant pleaded guilty to; 2) the punishment which appellant could be subjected to as a result of the guilty plea; 3) the terms of the plea — namely, that as a result of pleading guilty to being an accessory to the crime of the murder, the Commonwealth would not prosecute appellant as a principal in the crime of murder; and 4) that if appellant did not plead guilty, he would be presumed innocent until proven guilty and that he would be entitled to a trial by jury.³ Appellant stated that he understood the trial judge’s explanations. Additionally, appellant stated that his plea was voluntary and that he was not subjected to threats, force or coercion. Upon a review of the record, we find that the record supports the trial judge’s finding that appellant’s plea of guilty was tendered in a voluntary and understanding manner.

Appellant’s second contention is that the trial court erred in denying appellant’s request to withdraw his guilty plea. Pennsylvania Rule of Criminal Procedure 320 provides that “at any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” This Court held in Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976) that “the crucial factor in determining whether to allow a presentence withdrawal of a guilty plea . . . (is) the existence of substantial prejudice to the Commonwealth.”

Appellant pleaded guilty after the Commonwealth presented its case in chief. When a defendant pleads guilty after the Commonwealth has commenced its case, we hold that the Commonwealth will be “substantially prejudiced” if the defendant is allowed to withdraw his plea. In Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973) where a defendant after pleading guilty at the conclusion of the Commonwealth’s case in chief, requested permission to withdraw his guilty plea, this Court affirmed the trial court’s refusal to permit the withdrawal, holding that “prejudice to the Commonwealth . . . although difficult to prove, may be a very real possibility. Appellant would obtain an unfair advantage by being allowed, together with his counsel, a full preview of the Commonwealth’s evidence before deciding upon their trial strategy. Similarly, appellant’s actions, if allowed to succeed might be a means of obtaining an entirely new jury for a defendant anytime he feels that the jury originally selected is not favorably disposed to his cause, even though there were no grounds for a mistrial.”

Only when compelling reasons exist, such as a court’s improper acceptance of a guilty plea, is a court permitted, after the Commonwealth’s case had commenced and a guilty plea entered, to allow the withdrawal of the plea of guilty.

Judgment of sentence is affirmed.

O’BRIEN, POMEROY, NIX and MANDERINO, JJ., concur in the result. ROBERTS, J., filed a dissenting opinion.

1 . The Pennsylvania Rule of Criminal Procedure 321(a) provides that a defendant, in order to appeal the denial of a motion to withdraw a guilty plea, must file an additional motion in the trial court within ten days after imposition of sentence. This rule does not apply to appellant since he was sentenced prior to September 1, 1977, the effective date of Rule 321(a).

2 . This colloquy was held in accordance with Pennsylvania Rule of Criminal Procedure 319(a) which provides that a judge “shall not accept ... [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.”

This Court held in Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976) that a judge must inquire into six areas (set forth in the Comment to Rule 319) during a colloquy to ascertain whether the defendant understands the nature and consequences of his guilty plea. The trial judge inquired into five of the six areas; that the trial judge did not inquire into the sixth area (concerning whether the defendant was aware that the trial judge did not have to accept the plea agreement reached by the Commonwealth and the defendant) is harmless error since the judge, in fact, accepted the plea agreement reached by the Commonwealth and appellant. Commonwealth v. Skurkis, 465 Pa. 257, 348 A.2d 894 (1975).

3 . The record indicates that there is a factual basis for appellant’s plea that he was an accessory to the slaying of Francis C. Reed.