Com. v. Carelli
| Decision Date | 11 February 1983 |
| Citation | 454 A.2d 1020,308 Pa.Super. 522 |
| Parties | COMMONWEALTH of Pennsylvania v. John Guy CARELLI, Jr., and Kathleen M. Carelli, Appellants. |
| Court | Pennsylvania Superior Court |
David L. Cook, Dist. Atty., Butler, for Commonwealth, appellee.
Before HESTER, JOHNSON and POPOVICH, JJ.
This appeal arises from a guilty plea entered into by appellants in the Court of Common Pleas of Butler County on September 18, 1980, and the subsequent denial by that court of appellants' Petition to Withdraw said pleas.
A procedural and factual history of the case is as follows.
On January 17, 1980, a search warrant was issued for appellants' residence for the purpose of searching for various items of furniture stolen from Mr. John E. George of North American Van Lines. Upon arriving at the appellants' residence, the Cranberry Township police officers were admitted by appellant Kathleen Corelli. They immediately informed her that they had a search warrant for the premises. Two officers, upon a brief search of the gameroom and garage area, located one vehicle that had been entirely stripped, five license plates, and various auto parts. The officers ran a check on the license plates which resulted in the finding that all the plates had been registered as stolen. With this information, the officers returned to the magistrate's office to obtain a second warrant in order to search the appellants' residence for stolen motor vehicle parts. Upon issuance of this second warrant, the officers returned to the appellants' premises and located eight stolen vehicles. It required 2 1/2 days to inventory the stolen motor vehicle parts located in appellants' premises. The estimated value of the stolen property totalled one hundred fifty thousand ($150,000.00) dollars.
As a result of this investigation, the following charges were brought against appellants on January 18, 1980: 1) possessing instruments of crime 1, receiving stolen property (9 counts) 2, removal or falsification of identification number (8 counts) 3, and dealing in vehicles with removed or falsified numbers (8 counts). 4 Appellant, John Guy Carelli, Jr., additionally was charged with burglary 5 and theft by unlawful taking or disposition. 6
Subsequently, on March 28, 1980, the date set for their preliminary hearings, the appellants waived their cases to court. 7 Appellants' cases were consolidated for trial and trial was set for June 20, 1980. However, appellants' second counsel filed a Motion for Continuance requesting that the court continue the case to the September term of court. 8 Appellants individually executed sworn written waivers of their Rule 1100 rights, and these were incorporated into the continuance motion.
On June 16, 1980, appellants' motion was granted. On the first day of trial, appellants entered into a plea agreement and a guilty plea colloquy was conducted on September 18, 1980. 9 Under the plea agreement, appellant Kathleen Carelli pled guilty to one count of receiving stolen property in exchange for a one year probationary term while her husband pled guilty to nine counts of receiving stolen property for terms of three to seven years imprisonment, said terms to run concurrently. Sentencing was scheduled for November 6, 1980.
On November 3, 1980, appellants third counsel filed a Petition to Withdraw Pleas of Guilty and for Pa.R.Crim.P. 1100(a)(2) discharge. This petition was denied by the court the same day. 10 Appellants new counsel, then on November 7, 1980, filed a Petition for Writ of Habeas Corpus, Mandamus, Prohibition and other Relief with this Court. On November 6, 1980 the appellants appeared before Judge Dillon. Appellants' counsel, Attorney Brunwasser, did not appear for this proceeding. In a letter dated November 5, 1980 to the lower court he stated that the Notice of Appeal he filed with this Court on November 5, 11 removed the matter from the jurisdiction of the lower court. However, appellants' second counsel did appear for the proceeding, but requested that he be excused since he believed that he had been discharged by appellants. Judge Dillon, after asking appellants whether they had retained Attorney Brunwasser and receiving an affirmative response, committed both appellants to the Butler County Prison until such time as the Court could "arrange a sentence period." The court explained to the appellants that it was prepared to impose sentence, but since appellants were entitled to be represented by counsel at sentencing, he would commit them to prison until an appropriate sentencing date could be set.
On November 7, 1980 this Court granted appellants' Petition for Writ of Habeas Corpus. 12 Judge Dillon, on December 11, accepted the plea arrangement and sentenced the appellants accordingly. A hearing on appellants' Petition to Withdraw their Guilty Plea was scheduled for January 8, 1981, but upon appellants' motion, was continued to March 12, 1981. After the March 12 hearing on appellants' Petition, the Court issued an Order on May 5, denying appellants' Rule 321 motion.
It is from the above orders of November 3, 1980, December 11, 1980, and May 5, 1981 that appellants take this appeal.
The first allegation of error raised in this appeal is whether "the Lower Court erred when it refused the defendants' November 3, 1980 motion to withdraw their plea bargain offer before it was accepted and before they had been sentenced?" The standard used in determining whether a defendant should be allowed to withdraw his guilty plea before sentencing is as follows:
"While a pre-sentence withdrawal request should be liberally considered (a) defendant must present a fair and just reason for withdrawing the plea. Even if a viable reason is asserted for withdrawal, withdrawal is only permitted if the Commonwealth has not been substantially prejudiced by reliance on the plea. Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975); Commonwealth v. Mosley, 283 Pa.Super. 28, 31, 423 A.2d 427, 428 (1980); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Shaffer, --- Pa. ---, 446 A.2d 591 (1982).
The appellants in their Petition to Withdraw Pleas of Guilty raise twenty-five (25) allegations of error as fair and just reasons why they should be allowed to withdraw their guilty plea. These allegations concern three areas of the proceedings below: 1) the search warrants; 2) violation of Pa.R.Crim.P. 1100; and 3) guilty plea colloquy.
As to the question of whether the search warrant contained insufficient probable cause, the initial search warrant sets forth the following facts and circumstances:
"On January 4, 1980, Mr. John E. George of North American Van Lines, reported to the Cranberry Township Police that the above items were stolen sometime between August 15, 1979, and January 2, 1980. On January 2, 1980, Mr. George discovered vehicle tracks in a field which leads from the property of North American Van Lines to a barn being leased to the defendant John Guy Carelli. These tracks were made by a dual wheel vehicle. The defendant operates a dual wheel truck owned by Kathleen M. Carelli. The record division of the Pennsylvania State Police indicate that the defendant has been arrested for theft and receiving stolen property, dealing in titles and plates for stolen vehicles and attempted auto theft. On the 2nd of January, 1980, at 0735 hrs. an unknown intruder was discovered inside the building of North American Van Lines. The intruder was observed fleeing in the direction of the defendants' barn.
For a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance. Commonwealth v. Stamps, 493 Pa. 530, 535, 427 A.2d 141, 143 (1981); U.S. Const. amend. IV; Pa. Const., Art. I, § 8. Probable cause exists where the facts and circumstances within the affiant's knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted. Commonwealth v. Thomas, 448 Pa. 42, 52, 292 A.2d 352, 357 (1972). In determining whether the affidavit is sufficient to establish probable cause, one must recognize that affidavits supporting search warrants normally are prepared "... by nonlawyers in the midst and haste of a criminal investigation." United States v. Vantresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); Commonwealth v. Stamps, 493 Pa. 530, 537, 427 A.2d 141, 143 (1981). They, therefore, should be interpreted in a "common sense and realistic" fashion rather than in a hypertechnical manner. Vantresca, 380 U.S. at 108, 85 S.Ct. at 745; Stamps, 493 Pa. at 537, 427 A.2d at 144; Commonwealth v. Greco, 465 Pa. 400, 406, 350 A.2d 826, 829 (1976). Moreover, the probable determination of the issuing authority must be accorded great deference. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Ventresca, 380 U.S. at 108-09, 85 S.Ct. at 745-746; see Stamps, 493 Pa. at 537, 427 A.2d at 144.
In this case, the tracks from a dual wheel vehicle led from the Van Lines property to the appellants' barn; the fact that the appellants own a dual wheel vehicle; and, the observance of an intruder fleeing from the Van Lines premises toward the appellants' barn was more than sufficient "to warrant a man of reasonable caution to believe that a search should have been conducted" on appellants' premises for the stolen Van Lines property. Thomas, 448 Pa. at 52, 292 A.2d at 357.
Regarding the second warrant, it was based upon the information shortly following the officers arrival at appellants'...
To continue reading
Request your trial