*1 commutation in a which has been reduced sentence » 2 precluded life sentence
Appellant’s
imprisonment
initial
concurrent or consecutive
parole
regard
his
without
imposed
kidnap-
of sentence
on
judgment
nature of the
imposed
of sentence
judgments
ping
Appellant’s
conviction.
1941,
not limited
Act
after
were
his
minimum sen-
serving
after
he was
for
eligible
parole
did not
case,
that appellant
tence.
In the
we find
instant
of Pearce.
holding
receive a more severe sentence within
affirmed.
of sentence
Judgments
Paul ROBERTS, EAGEN, J., O’BRIEN, POM- Before C. LARSEN, JJ. EROY, NIX, MANDERINO OPINION *3 POMEROY, Justice. Rosmon, A. May 20, 1976, Joseph
On the appellant Jr., the to third tendered a of murder of plea and, accepted the was plea an extensive following colloquy, the a plea bargain trial In judge. accordance a sentence of Attorney, between the District appellant was recommended imprisonment twenty years of to eight 27, 1976, Rosmon July was the On court. imposed by his plea to withdraw petitioned permission the trial court for this en the guilty.1 petition The court banc denied the trial court. appeal the order of followed. We affirm reiterated, petition recently in the trial a filed As we have such attacking validity a proper procedure court is the the 104, (1977); plea. Beatty, 994 v. 474 Pa. 376 A.2d Commonwealth 7, (1976); Hunter, Common- v. Pa. A.2d 785 Commonwealth 468 359 528, Zakrzewski, (1975); Common- A.2d 898 wealth v. 460 Pa. 333 Lee, 324, (1975). a When such wealth v. 460 749 Pa. 333 A.2d sentence, petition is subsequent imposition the rule is the filed “ ‘necessary only a granted to correct that relief where will 485, 490, Starr, injustice’.” 450 301 manifest v. Pa. Commonwealth 592, (1973). plea such as was here A.2d 595 Involuntariness alleged qualify would under formulation. that imposition following petition plea of sen- A to withdraw a requires governed by all such tence is now Pa.R.Crim.P. 321 which
543 The record discloses a tavern entered and, woman, a Washington County accompanied by young proceeded to a table in rear of the There pool the bar. they encountered Richard and Coen. two Nancy couples The until a played pool argument heated broke out between the two men. at the coroner’s conflicted Testimony hearing as Rosmon, whether or not any Coen at time struck but it is agreed that Coen was When the attempted unarmed. Coens tavern, to leave produced the Rosmon a .22 caliber pistol from his coat pocket and, stationing himself between the exit, Coens and the threatened shoot Coen. Richard The police called, the premises were and entered as Rosmon was door, backing gun toward aimed at Coen. The presence unheeded, of the one police went whereupon officers attempted prevent firing. Rosmon from Rosmon nevertheless a pulled trigger, killing bystander. Rosmon exclaim, heard to “I shot man.” wrong
The foregoing facts were established at
guilty plea
and were
hearing
admitted
The trial
appellant.
judge then proceeded to
what a
explain fully
guilty plea
connoted and the
plea. See,
consequences
entering such
e.g.,
Commonwealth v.
Rodgers,
Pa.
“[THE COURT:] to the or that fact know what you thought, you didn’t *4 Coen in had mind at the time of confrontation with your petitions days present sentencing. to be filed within 10 of The petition sentencing, following not was filed until month one we do by not consider it 321 barred Rule which did not effective become September proce- until 1977. Prior to the new rule of criminal dure, guilty pleas governed the timeliness of withdraw was efforts to diligence Bunch, approach. a due 466 Pa. Commonwealth (1976); Standards, 351 (1968). A.2d Guilty A.B.A. Pleas of 2.1§ There is any no assertion the Commonwealth nor basis in the diligence record to conclude that this failed due to exercise filing petition. if a Now, Pennsylvania, law of defendant him. under the he was necessary that the force used believes reasonably bodily injury against himself death serious protect to . I think it was sir. “DEFENDANT: . if you this would be a defense and
“THE COURT: Then to trial defense, you have then should you go think to accept your plea we not permitted and would that is the law of and I’m that because telling you tell Mr. Petro us what the You have heard Pennsylvania. is and I’m sure prove Commonwealth prepared Liekar, testimony what the Mr. knows your attorney, Inquest and at the hearing at the Coroner’s preliminary you. I’m over that with and sure he has gone as I have “Now, of self-defense you do have the defense it that a again, read to you that to I’ll explained you if he justification reasonably person has defense necessary protect he used was believes that force on the same injury, himself death or serious against bodily because the used the force occasion that defendant defense of disproving Commonwealth has the burden you if jury and the could find justification only you doubt that a reasonable they beyond were satisfied you used was did not believe that force reasonably there, then and protect yourself immediately necessary that was or would injury death or serious against bodily have been on Mr. Coen. you by inflicted with “Now, feel, discussing that attor- you your if after then we ney, that have the defense you third permit plead should not case.” murder we to trial this go should client.) confers (Mr. Liekar counsel] [defense Honor, I have discussed that with “MR. LIEKAR: Your Court, I we came into when inter- Mr. Rosmon before it was at the time opinion viewed him previously, my Rosmon, and I Mr. that a defense self-defense told testimony would not hold under the which had up reviewed, and I have coming Inquest out Coroner’s *5 so advised Mr. Rosmon and whether he still believes he Coen, that he had to use the gun threatened Mr. defense, for his own if he wishes to take that protection, I him against going course can’t it. I can’t deny argue trial, (Mr. but I have discussed it with him. Liekar Rosmon, client). Now, turns to his we discussed the Mr. matter of as were in fear of you to whether Coen, that he harm seriously you would attack you conversation, it is as the result of our my understanding that we both decided that was not the case and we could trial, not at prove that a is that correct? Yeah, just
“DEFENDANT: so we with what yeah, stay we have. I know I’m in the I know what right. hap- I pened. know I 3rd I pled degree but know I’m not but I know if I in front of a I go jury, will be found that I have told here everything and that she down, wrote the truth. telling I’m “THE COURT: Do admit that said after you you shooting wrong killed the Do re- you person? you member that? saying
“DEFENDANT: I remember that sir but I’m saying just trying get out of the bar.
“THE COURT: Do understand you by pleading guilty to third degree murder, are you giving up your right your defense of you? self-defense as I described that to “DEFENDANT: understand that sir.
“THE COURT: You are now to enter the willing plea guilty to the crime of third murder and do so at this time? Yes,
“DEFENDANT: sir. “THE COURT: else Mr. Liekar? Anything course, “MR. No, LIEKAR: there will be sir. Of presentence investigation sentencing. before “THE COURT: Mr. Petro? Yes. else Anything No, “MR. PETRO: Your Honor.” Mr. Rosmon now asserts that the foregoing portion guilty plea colloquy demonstrates that his was not knowingly and intelligently entered. is that a cannot be said guilty plea
Appellant’s position
the time it is
where at
tendered
intelligent
knowing
*6
innocence. While this Court
maintains his
the defendant
to be the law
proposition
this
has not had occasion to declare
Pa.
Sampson,
v.
445
see Commonwealth
in
Pennsylvania,
of
485,
480,
(1971) (concurring opinion
558, 566, 285 A.2d
O’BRIEN,
J.), we nevertheless
ROBERTS,
J.,
by
joined
the instant case.
believe it
inapplicable
is the
urges
which appellant
rationale of the rule
The
an
with
claim of innocence
obvious
incompatability
of
the two states
the
between
admission of
conflict
guilt;
is know
plea
that
the
mind,
said,
it is
a conclusion
negates
Rob
v.
Commonwealth
and
entered.
See
ingly
intelligently
v.
Commonwealth
inson,
316,
(1973);
452 Pa.
“Unlike the factual of plea (1971), where Shank, A.2d 479 446 Pa. the defendant testimony exculpatory and the bar, at resolution, in the case without stood side side defense, in self was killing after a flat assertion that the incompatibility carefully explained the trial judge his claim abandoned the defendant the two positions of guilt. to his plea adhere elected to of self defense and voluntary, a reflects colloquy We are satisfied that guilt.” plea intelligent entry knowing, satisfied case, we are In instant conse- and the to trial of his right proceed advised fully knowingly Rosmon guilty. upon attendant quences defense3 unlikely an chose to abandon intelligently He bargain. of the plea the favorable terms order to obtain *7 now might what adopt or seek complain, not now may strategy. a preferable to have been appear petition denying appellant’s court The order of the trial is withdraw his affirmed.4 guilty plea NIX, in the result. J., concurs in which MANDERINO, J., dissenting opinion files ROBERTS, J., joins. Justice,
MANDERINO, dissenting. (the colloquy guilty plea reading I dissent. My opin- majority quoted of which are portions relevant acting would have Any in self-defense that Rosmon was 3. assertion alleged aggressor was un- facts that been contradicted retreat, armed, and that unimpeded appellant avenue had an that in a police and were shooting had arrived occur until after did not dispute. position party to the to control the other purported both from the appeal to be 4. The notice of filed herein denying appellant’s November order of the trial court entered judgment plea, from the petition guilty and his for leave to withdraw appeal that the extent To the June sentence entered on was, course, it purported judgment sentence to be from the event, appeal from the order 903(a). any untimely. In Pa.R.A.P. all issues which denying guilty embraces leave to withdraw the judgment. appeal from the could have been raised on direct ion) (at 1223-1224), convinces me that pp. appellant’s plea was not entered. knowingly intelligently it is clear that felt that he had acted in
Initially appellant self-defense: in Penn- response Court’s reference to sylvania law a defendant’s reasonable belief that concerning himself, the force used was necessary protect it is responded, Secondly, . .1 think it was sir.” clear that because he be- appellant pled guilty erroneously attorney been so informed his having —that lieved— order prove he would have to at trial gain an acquittal, trial that he in self-defense. counsel Appellant’s had acted claim of stated that he appellant regarding had advised self-defense, saying, to whether discussed the matter of as
“[W]e Coen, you you were in fear of that he would attack harm it is as the seriously my understanding conversation, result of our that we both decided trial, not the case we could not that at a is prove correct? (Emphasis added.) Appellant immediately responded, saying “Yeah, yeah, just so we with what we have. I know stay I’m in the I right. pled know what I know happened. to 3rd but I know but I know I’m not if I in front go I will be found jury, down, that I have told here and that she wrote everything I’m telling added.) truth.” (Emphasis *8 reasons, For these knowingly do not believe llant app to murder and therefore intelligently pled guilty would reverse the judgment of sentence and for a new remand trial.
ROBERTS, J., joins in this dissenting opinion.