Com. v. Turiano

• Decision Date: 13 January 1992
• Citation: 411 Pa.Super. 391,601 A.2d 846
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. Charles J. TURIANO, Appellant.

Page 846

601 A.2d 846

411 Pa.Super. 391

COMMONWEALTH of Pennsylvania v. Charles J. TURIANO, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 15, 1991.

Filed Jan. 13, 1992.

Jeffrey W. Stover, State College, for appellant.

Stewart L. Kurtz, Dist. Atty., Huntingdon, for Com., appellee.

Before CAVANAUGH, CIRILLO and BROSKY, JJ.

CAVANAUGH, Judge:

Appellant asserts that the trial court erred by denying his request to withdraw his guilty plea because of (1) ineffectiveness of counsel in preparing an insanity defense and (2) alleged interference with his legal mail by prison guards. We are constrained to agree with the tenor of his first argument based on the liberal standard for the withdrawal of guilty pleas before sentencing first articulated in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). We do so with reluctance, however, because we feel the standard adopted in Forbes no longer comports with guilty plea practice in this Commonwealth.

A full recitation of the facts and the procedural history of the case sub judice sets our concerns in a more proper focus. On June 18, 1990, at approximately 9:00 p.m., the appellant shot and killed two persons, Lewis Taylor and Timothy Steele. Appellant's motivation in committing the crimes is not clear. ¹ The shooting occurred in the Taylor household, and Lewis Taylor's father and the appellant's niece were present in the house at the time of the murders. They were able to positively identify appellant as the perpetrator. The appellant was arrested the next morning.

Robert Stewart, the County Public Defender, was appointed to handle this case the day after the murders. Appellant soon became dissatisfied with Attorney Stewart's representation. On July 11, 1990, he wrote a letter to the trial court requesting another attorney. The letter was received by the court on July 14th, and the court had the defendant appear before him on July 19th and interrogated the defendant concerning his request. The defendant felt that it was his attorney's responsibility to request the trial court to order a mental health examination as soon as possible. Attorney Stewart had mentioned attaining such an exam for him when he was appointed on June 19th. Appellant told the court that he didn't trust Attorney Stewart because he had made no effort to attain the promised exam, and had done nothing on his case. Attorney Stewart and the trial court informed the appellant that it was unprecedented in the County for a mental health exam to be scheduled in the first month or two after arrest. The appellant requested the trial judge to provide him with another attorney. The trial judge refused, asserting that Attorney Stewart was the best and most experienced person doing criminal defense in the County.

On August 23, 1990, Attorney Stewart on behalf of appellant drafted a request for a psychological examination. On August 24, 1990, Attorney Stewart received an order from the trial court providing the appellant with the psychological examination. Appellant was taken on September 14th from the prison in Huntingdon County and driven to Pittsburgh, whereupon he refused to cooperate with the psychologist because of his dispute with his attorney. Appellant claims that he informed the trial court in a letter that he would refuse to cooperate with the upcoming mental health exam because it was a psychological exam and not a psychiatric exam. ² Attorney Stewart eventually felt compelled to ask the trial court to allow him to withdraw, and on November 2, 1990, formally made application to withdraw. On November 20, 1990, the trial court issued an order granting his application, and appointing appellant's present attorney, Jeffrey Stover. The same order also granted new counsel's request for a psychiatric exam, thus indicating that Attorney Stover was not remiss in arranging for a mental health evaluation himself. On December 17, 1990, the trial court issued an order which arranged for the Huntingdon County Sheriff's Office to transport appellant to the psychiatric examination.

On December 24, 1991, the appellant underwent the psychiatric exam. The resulting report states that the defendant is an alcoholic ³ who was suffering chronic depression at the time of the murders. On the day of the murders, as was typical, he had been drinking heavily. ⁴ The psychiatric report expresses regret that the examination was given so far in time from the murder, that it was now impossible for the evaluating psychiatrist to determine what the appellant's mental state was at the time of the shootings. The report posits that an examination conducted shortly after the murders may have been able to ascertain the appellant's exact mental state at the time of the murders. The report also opines that at the present time the appellant was competent to stand trial and to cooperate with counsel. The report is dated January 16th, and presumably appellant and his attorney had access to the report before February 4th, the day he pled guilty.

On February 4, 1991, the appellant pled guilty to the murders as part of a plea agreement arranged by present counsel. In exchange for the Commonwealth's promise not to seek the death penalty, the appellant pled guilty to one count of 1st degree murder and one count of 3rd degree murder. The trial court gave the appellant an extensive guilty plea colloquy to ascertain whether his plea was knowingly and voluntarily given. The trial court then postponed the sentencing until it could have the benefit of a presentence report. At the subsequent sentencing hearing held on April 18, 1991, the appellant asked to withdraw his plea and the trial court refused. In response to the trial court's query, appellant gave two reasons why his plea should be withdrawn. He alleged that his defense was prejudiced because his first attorney failed to attain for him a mental health evaluation expediently. Moreover, he claimed that prison guards tampered with his mail, thus effecting his ability to properly communicate with his attorney. The trial court ordered a continuance of eleven days for the appellant to file a written motion to withdraw his guilty plea. Appellant filed the motion and after a hearing on the motion on May 10, 1991, the trial court denied appellant's motion. In accordance with the plea arrangement, appellant was sentenced to life imprisonment on the first-degree murder charge and to a consecutive 10-20 year term for third-degree murder. In his subsequent opinion on the motion, the trial court emphasized that the appellant's plea was knowing and voluntary and that fraud would be perpetrated on the court if the appellant was allowed to contradict his guilty plea hearing confession.

The present standard for determining whether a defendant before his sentence can withdraw a guilty plea was first articulated in 1973 in the seminal case Commonwealth v. Forbes, supra. A request to withdraw a guilty plea has to meet both prongs of the following two-part test. First, a withdrawal cannot be granted if to do so would substantially prejudice the prosecution. Commonwealth v. Anthony, 504 Pa. 551, 561, 475 A.2d 1303, 1308-1309 (1984); Forbes, supra, 450 Pa. at 191, 299 A.2d at 271. Second, a withdrawal request made prior to sentencing should be granted for any "fair and just" reason. Anthony, supra, 504 Pa. at 561, 475 A.2d at 1308-1309; Forbes, supra, 450 Pa. at 192, 299 A.2d at 271.

Although there is no absolute right to withdraw a guilty plea, Commonwealth v. Cole, 387 Pa.Super. 328, 331, 564 A.2d 203, 204 (1989) (en banc), requests to withdraw guilty pleas prior to sentencing should be "liberally allowed." Commonwealth v. Shaffer, 498 Pa. 342, 345, 446 A.2d 591, 593 (1982); quoting Forbes, supra, 450 Pa. at 190, 299 A.2d at 271. Commonwealth v. Jackson, 390 Pa.Super. 639, 646, 569 A.2d 964, 968 (1990). A trial court's decision as to whether to allow a guilty plea to be withdrawn will not be disturbed absent an abuse of discretion. Commonwealth v. Boatwright, 404 Pa.Super. 75, 82-83, 590 A.2d 15, 19 (1991); Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 894 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926 (1990). A trial court must exercise its discretion with a view towards permitting withdrawal for any fair and just reason. Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975); Commonwealth v. Woods, 452 Pa. 546, 550, 307 A.2d 880, 881 (1973).

The existence of substantial prejudice to the Commonwealth has been called the crucial factor in determining whether to allow a presentence withdrawal. (emphasis court's) Commonwealth v. McLaughlin, 469 Pa. 407, 412, 366 A.2d 238, 241 (1978); Jackson, supra, 390 Pa.Super. at 646, 569 A.2d at 968. Here, the Commonwealth readily concedes that it will not be prejudiced if the guilty plea is withdrawn. The Commonwealth has declared that it will be in the same position presently as it was when the appellant pled guilty in February. Given this admission, it only remains for the appellant to establish the much less burdensome requirement that any "fair and just" reason exists for the defendant to withdraw his plea. We have found that where no prejudice exists to the Commonwealth, a defendant does not have to articulate a very substantial "fair and just" reason for us to find that a trial court erred in failing to grant a defendant's request to withdraw his plea before sentencing. Commonwealth v. Reider, 255 Pa.Super. 163, 165-166, 386 A.2d 559, 560 (1978).

We now address appellant's second argument, as we find it presents less difficulty. Appellant claims that the trial court should have allowed his guilty plea to be withdrawn because he claims his mail was interfered with, thus interfering with his communications with his attorney. Appellant argues in his brief that the Commonwealth did not present any testimony directly countering appellant's testimony. Appellant asserts that one particular communication was interfered with...