Commonwealth v. Heeman

SPAETH, Judge,

dissenting:

In Commonwealth v. McCusker, 245 Pa.Super. 402, 369 A.2d 465 (1976), a majority of this court held that if a defendant fails to file in the lower court a petition to withdraw his plea, as required by Commonwealth v. Roberts, 237 Pa. 336, 352 A.2d 140 (1975), he waives his right to attack the validity of his plea on appeal. Here, the majority opinion reiterates that statement.

The reiteration is unprincipled, for two reasons. The first reason is that on petition for allocatur the Supreme Court reversed the holding of this court in McCusker. Commonwealth v. McCusker, 485 Pa. 313, 402 A.2d 500 (1977). The second reason is that we have recognized, and have followed (as, of course, we must), the Supreme Court’s decision in McCusker. Commonwealth v. Marzik, 255 Pa.Super. 500, 388 A.2d 340 (1978). See also Commonwealth v. Curry, 254 Pa.Super. 444, 386 A.2d 32 (1978). But see Commonwealth v. Hughes, 257 Pa.Super. 258, 390 A.2d 811 (1978). (It is an *82occasion for some surprise that in its opinion here the majority does not cite either McCusker or Marzik.)

The judgment of sentence should be vacated and the case remanded for further proceedings consistent with the decisions of the Supreme Court in Commonwealth v. McCusker, supra, and of this court in Commonwealth v. Marzik, supra, and Commonwealth v. Curry, supra.

CERCONE, J., joins in this dissenting opinion.