Commonwealth v. SmithCommonwealth v. Smith
- Reporters:
- , ,
- Before:
- Hoffman
Appellant was convicted in a nonjury trial of robbery, kidnapping, burglаry, recklessly endangering another person, terroristic threats, аnd possession of an instrument of crime. Following the denial of post-verdict motions and the imposition of sentence, new counsel was appointed for appellant to pursue this apрeal. Appellant now contends, inter alia, that trial counsel was ineffеctive for failing to raise in post-verdict motions the lower court’s patently defective jury trial waiver colloquy. We agree and, accordingly, reverse the judgment of sentence and grant aрpellant a new trial.
The Commonwealth concedes that thе lower court’s colloquy with appellant concerning the wаiver of a jury trial was defective under the standards enunciated in Common*65wealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). In оrder to knowingly and intelligently waive his right to a jury trial, an accused must be aware of the essential elements of a jury trial, i.e., “that the jury be сhosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selеction of the jury panel.” Id., 454 Pa. at 373, 312 A.2d at 600 (emphasis added). See also Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978); Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); Commonwealth v. Fortune, 289 Pa.Superior Ct. 278, 433 A.2d 65 (1981); Commonwealth v. Phillips, 285 Pa.Superior Ct. 485, 427 A.2d 1391 (1981); Commonwealth v. Duncan, 266 Pa.Superior Ct. 112, 403 A.2d 119 (1979); Commonwealth v. Bouie, 263 Pa.Superior Ct. 556, 398 A.2d 716 (1979). The lower court failed to inform appellant that he could participate in the jury selectiоn and that the verdict must be unanimous. Appellant contends that the fаilure of his prior counsel to raise the improper collоquy in post-verdict motions denied him the effective assistance оf counsel. We agree. As our Supreme Court held under similar circumstаnces, “the only conclusion possible is that appellant’s previous counsel was ineffective for failing to raise the issue оf the validity of the jury trial waiver in post-verdict motions . . . . ” Commonwealth v. Morin, supra, 477 Pa. at 86, 383 A.2d at 832. When counsel hаs been found ineffective for failing to raise the adequacy оf a jury trial waiver colloquy, the proper remedy is to remand for a new trial. Id., 477 Pa. at 87-88, 383 A.2d at 835.
The Commonwealth contends, however, that although the colloquy itself was insufficient, appellant signed a waiver setting fоrth all the essential elements of a jury trial, and thus, his consent was knowing and intelligent. We disagree. Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides, in pertinent part:
In all cases the defendant mаy waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and eleсt to be tried by a judge without a jury. The judge shall *66ascertain from the defendant whethеr this is a knowing and intelligent waiver, and such colloquy shall appear on the record.
(Emphasis added.) “The intelligence of such a wаiver may not be presumed, guessed or conjectured.” Commonwealth v. Tami, 264 Pa. Superior Ct. 535, 539-40, 400 A.2d 214, 216 (1979), quoting Commonwealth v. Hooks, 450 Pa. 562, 565, 301 A.2d 827, 828 (1973). The lowеr court failed to inform appellant during the colloquy of his right to рarticipate in the jury selection and the need for a unanimous verdict. Although appellant signed a purported waiver cоntaining that information, the lower court did not ask appellant whеther he had read it, and, if he had, whether he understood it. Thus it was impossible for the lower court to have determined whether appellant had knowingly and intelligently waived a jury trial. Accordingly, because thе lower court has failed to comply with the requirements of
Judgment of sentence reversed and appellant granted a new trial.
Notes
Because of our disposition of this matter, we ■ need not address appellant’s remaining contentions.