*1 appellee transferring culpability criminal inferentially this, accomplish In order to Mr. Camioni Mr. Camioni. plead Mr. or selling drugs had to admit Jaindl would have If Mr. chose the for- right. 5th Amendment Camioni his mer, highly unlikely, circumstances, re- these to have inculpatory. Under
been Mr. to allow Camioni appellee the trial quired him his 5th Amendment would to have invoke just futile. have been
Moreover, appellee fails to consider that majority trial, but Mr. whereabouts well before aware of Camioni’s attempt the end of trial to call waited until strategically him as as witness. the sound discre- a witness is within procure motion Sullivan, of the trial court.
tion Furthermore, (1979). request by untimely will be deemed defendant to secure a witness to trial prior of the witness’ whereabouts when he is aware Scott, nothing. Commonwealth v. but motion was a sub- Appellee’s Hence, court acted motion. the trial pretrial for a ject refusing to entertain belated within its discretion motion. decision. dissent from the
Accordingly, Pennsylvania, Appellee, COMMONWEALTH CARSON, Brown, Appellant. Reginald Kenneth a/k/a Oct.
Submitted Dec.
Decided *2 Burton A. Rose (Court-appointed), Philadelphia, appel- for lant. Lawler, Chief, Div.,
Robert B. Asst. Dist. Atty., Appeals Cooperstein, appellee. Steven Asst. Dist. for Atty., FLAHERTY, ROBERTS, C.J., NIX, LARSEN, Before and McDERMOTT, ZAPPALA, INSON JJ. HUTCH
OPINION ZAPPALA, Justice. decided in appeal is whether the entitled to a
Appellant is new trial on the basis that his original Appellant trial counsel was ineffective. The was burglary charges convicted of and related in a non-jury Following on March the denial of post-verdict motions, he was sentenced to imprisonment a term of appeal less than two nor more than twelve No direct years. imposition was taken In following April sentence. 1979, the filed a pro petition se relief under Hearing the Post-Conviction Act. was appointed Counsel held, requested and a was following which This Court affirmed. denied. The relief allocatur to consider granted of counsel assistance was denied effective ingredients all explain of counsel’s failure reason in which during to a trial by jury We now affirm. resolving presented applied
The law be 368, 312 Williams, 454 Pa. is set forth Commonwealth convic- this Court case reversed A.2d 597 original trial where neither the ordered new tion and subsequent hearing, record, justified the record of a nor waiver finding There we observed any indication that on the record is there
Nowhere [the of a knew the essential defendant] significance to understand necessary *3 basic ingredients, These essential waiving. he was right trial, that are the concept requirements a jury to the (a community chosen members the be from jury the unanimous, and verdict peers), of one’s that the be selection participate that the accused be allowed of the of the record panel.... view failure knowledge of that had sufficient appellant to establish waived, it right is now contended he knowing or find was either unable to the waiver A.2d at Williams, 454 Pa. at record of the conducted before the The in this case indicates clearly jurors that a consists of twelve whose verdict informed unanimous, and that be able to be he would The jurors. with counsel in the selection of the participate argues explained it only that because was from would be chosen “members defec- “peers”, or from his community” ineffective, tive, he is to a new counsel was entitled step take a arguing, In so he invites this Court to which it explicitly refused to take in Williams. For the Williams, reasons set forth in 372-73, see 454 Pa. at A.2d at we decline the invitation.
It must recognized that Williams did not establish a prophylactic requiring rule a new trial for failure of the record to indicate the defendant’s knowledge of each and every element of the jury which he was waiving. was, The focus in remains, Williams and it whether the waiver was intelligent, not whether certain talismanic were asked and answered. In deter- mining whether this Appellant knowingly and intelligently jury, PCHA court and the Superior Court had before them both the record of the colloquy and the taken at the PCHA and his trial counsel.1 We find no error in their determination based on this evidence that the Appel- fully lant understood the of a jury trial and his thereto, and made a knowing and intelligent waiver of those rights. Order Court is affirmed.
NIX, J., filed a concurring opinion.
NIX, Justice, concurring.
I cannot accept view the colloquy preceding waiver of the jury was not defective. To the contrary, under very clear language Williams, a very impor tant element has been omitted. Commonwealth v. Wil liams, (1973); see also Common Smith, wealth v. 498 Pa. Com Greene, *4 Although testified actually "I don’t know what a 1. trial,” (PCHA Hearing, trial is. I never had a March at 18), any he also testified that he did not remember colloquy clearly which the record of the establishes were asked and {Id., 19). answered at suspect. His is thus to some extent Appellant’s unequivocally trial counsel testified as follows: Q any question your Is there in perhaps mind that the defendant did not understand what going were in terms of to a trial? No, question intelligent I had no that there was an waiver. 29). at {Id.
373 Morin, 80, v. Pa. 832 Commonwealth 477 383 A.2d v. Boyd, Commonwealth that, determining
It is also true in sufficiency arewe confined to colloquy, considering only the record. See Commonwealth v. 316 A.2d Ingram, Morin, see also supra; Com- Boyd, supra; Pa.R.Crim.P. 1101. Thus a in requires examination this case the conclusion that fact colloquy defective. However, mere finding that is defective not answer the as to whether counsel was his representation ineffective in failing either attention to the omission at the time of the colloquy or pursuing objection on appeal. Unlike the determination as to or not sufficient, adequacy of the stewardship of counsel does not require that we confine appears ourselves that which on the record of the proceeding question. Here had testimony by post-conviction counsel at the proceeding to the effect that it was his practice always to discuss the ingredient before, at issue rather during, than waiver colloquy, and that he had no that there had intelligent been an waiver. Given additional record evidence, I discern no basis for a finding of ineffectiveness. Accordingly, concur in mandate. A.2d KRENZELAK, Appellee,
Wilma M. Stanley Krenzelak, Chester KRENZELAK Appellants. Court of Argued Sept.
Decided Dec.