Commonwealth v. Robinson , 228 Pa. Super. 179 ( 1974 )

Opinion by

Watkins, P. J.,

This is an appeal from the judgment of sentence from the Court of Common Pleas, Criminal Division, of Berks County after refusal by the Court below to permit the defendant-appellant, Lillian B. Robinson, to change her plea from guilty to not guilty, before sentence.

The defendant was indicted for carrying a concealed deadly firearm without a license. She was called to trial on June 14, 1972. After the jury had been challenged and selected but before it was sworn she changed her plea from not guilty to guilty. After a long and detailed colloquy which fulfilled the mandate required in such cases, the plea was accepted. When called for sentence, she then indicated a desire to change her plea from guilty to not guilty. The court then suggested that she formally petition for the change.

The court below commented on the hearing on her petition to change her plea in his opinion as follows:

“At a hearing on said petition it appeared that her reason for her desire to withdraw her guilty plea was not any feeling of innocence but rather her disappointment that the recommended sentence by the Chief Parole and Probation Officer was greater than she had expected and hoped for although there was no plea bargain. The hearing judge refused the prayer of her petition.

“The rule is stated to be that ‘. . . in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, “the test to be applied by trial courts is fairness and justice.” If the trial court finds “any fair and just reason”, withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been “substantially prejudiced”.’ Commonwealth v. Forbes, 450 Pa. 185, 191 (1973); Commonwealth v. Morales, 452 Pa. 53, 54 (1973).”

In Commonwealth v. Woods, 452 Pa. 546, 307 A. 2d 880 (1973), the court stated that there is no absolute right to withdraw a guilty plea, although a request for such change prior to sentencing should be liberally allowed. In Woods, supra, and in most cases involving a change of plea, there is a contention of innocence of the charge. See also Commonwealth v. Santos, 450 Pa. 492, 301 A. 2d 829 (1973). The hearing held on her petition did not reveal such a contention or did the colloquy when she entered her plea of guilty disclose such a contention.

In Commonwealth v. Kamenca, 226 Pa. Superior Ct. 548, 553 (1974), this Court affirmed the court below in refusing to permit a change in plea and in speaking for this Court, Judge Jacobs said: “In the present case, we believe that the argument in favor of withdrawal is deficient with respect to a fair and just reason. The appellant was not able to disavow his commission of the acts as to which he stood charged. The tendency of his statements with regard to innocence was to suggest mitigating circumstances surrounding his conduct.”

The court below further said: “We are of the opinion that the defendant’s disappointment with the sentence recommended and imposed is no fair and just reason to warrant the withdrawal of her guilty plea. Further, we believe that the Commonwealth would be substantially prejudiced in the prompt disposition of the case if the tactics here attempted by the defendant are permitted.”

It is true that in this case the jury had not been sworn but all else had been done. The Commonwealth was ready to try its case. The witnesses were ready and costly time consumed when she decided to enter her plea of guilty. If her petition to change her plea again is permitted, the whole thing starts all over again with a further deterioration of the judicial capacity to try cases. She may then enter pleas like a yo-yo until she gets a sentence to her liking.

Judgment of sentence affirmed.