Com. v. Anthony

• Decision Date: 19 November 1982
• Citation: 307 Pa.Super. 312,453 A.2d 600
• Parties: COMMONWEALTH of Pennsylvania v. Curtis L. ANTHONY, Appellant.
• Court: Pennsylvania Superior Court

Page 600

453 A.2d 600

307 Pa.Super. 312

COMMONWEALTH of Pennsylvania v. Curtis L. ANTHONY, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 10, 1981.

Filed Nov. 19, 1982.

Brian J. O'Neill, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before HESTER, McEWEN and CIRILLO, JJ.

McEWEN, Judge:

We here review the claims of an appellant who entered a negotiated plea of guilty to charges of third degree murder and robbery and was sentenced to a term of from ten to twenty years for murder of a storekeeper during an armed robbery and to a concurrent term of two and one-half to five years for the robbery. Appellant took no direct appeal but filed a petition for relief pursuant to the Post Conviction Hearing Act (hereinafter PCHA). ¹ The distinguished Philadelphia County Common Pleas Court Judge Edward J. Blake conducted hearings on the petition and denied the relief sought. We affirm.

The quite compelling brief of appellant poses the following issues in the Statement of Questions Involved:

Was the guilty plea colloquy defective?

Did the trial judge err in refusing to allow appellant to withdraw his guilty plea prior to sentencing?

Did appellant's failure to file a petition to withdraw his guilty plea result in a waiver of his right to challenge the validity of this guilty plea under the Post-Conviction Hearing Act?

Was appellant denied the right to a direct appeal when trial counsel failed to file an appeal after he had told appellant that he would do so?

Since we have considered and will here discuss and rule upon the substantive issues presented by the first two questions, we need not discuss the latter two questions that relate to the rights of appellant to have the substantive questions studied in this appeal.

The record reveals that during the afternoon of August 29, 1975, Arthur Wilson, married and 70 years of age, was murdered in his shop at 2841 Girard Avenue, Philadelphia. Appellant, on March 1, 1976, pleaded guilty to murder in the third degree and pleaded guilty to robbery before the learned Common Pleas Court Judge, now the distinguished Commonwealth Court Judge, Robert W. Williams, Jr. The Commonwealth, during that guilty plea hearing, provided a summary of the case to the court which included the advice that the partner of the murder victim was an eyewitness to the robbery and that this partner would testify that:

[O]n August 29, 1975 at approximately 2:30 p.m. he was co-owner with Mr. Arthur Wilson of the Robinson Clothing Store, 2841 West Girard Avenue.

At that time two individuals came into the store, one of which he would identify as the defendant. The defendant went to the counter and asked for a shirt. He was given a shirt in a cellophane wrapper. This defendant then pulled out what turned out to be a starter pistol and announced a holdup. The other defendant, which is Allan Smith, pulled out a gun and also participated in the holdup.

The owner, Arthur Wilson, took his .25 calibre automatic and shot one round at the defendant, Allan Smith. Allan Smith then shot four times, one of which bullets caught Arthur Wilson in the chest, and that is the bullet wound from which he died.

The defendant was arrested on the 4th of September. Defendant gave a statement admitting his participation in the robbery of the store, and the fact that Allan Smith shot and killed the decedent. The defendant then tape recorded that statement.

Fingerprints were taken from the shirt in the cellophane wrapper which were matched and positively identified as the fingerprints of this defendant when he was arrested. (N.T. 2/27/76, pp. 24-26).

The imposition of sentence was continued so as to provide for the completion of a pre-sentence investigation report. While the court commenced a sentencing hearing on June 8, 1976, the actual imposition of sentence was further deferred until after the co-defendant had been sentenced. After a further hearing on July 7, 1976, judgment of sentence was imposed. It was not until ten months later that appellant initiated the instant PCHA proceedings.

I

Appellant contends the guilty plea colloquy did not include the statement that the verdict of the jury to convict must be unanimous. The record confirms the colloquy did not include such a statement. It is to be noted, however, that appellant does not assert either (1) that this omission caused him to enter the plea or (2) that his waiver of a jury trial was not a knowing and intelligent waiver.

The pertinent Pennsylvania Rules of Criminal Procedure are two, namely, Rule 319(a) and Rule 1101, the relevant parts of which provide:

Rule 319. Pleas and Plea Agreements.

(a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant's behalf.

Rule 1101. Waiver of Jury Trial.

In all cases the defendant may 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 elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record.

Rule 319 establishes as a condition precedent to a guilty plea a determination by the trial judge that the plea of the defendant is tendered "voluntarily and understandingly". Since the entry of a guilty plea posits a waiver by the defendant of his right to a jury trial, the trial judge must ascertain during the guilty plea colloquy whether the waiver by the defendant of his right to a trial by jury is, pursuant to the requirement of Rule 1101, a "knowing and intelligent waiver".

The issue we here discuss is whether the omission of the unanimity statement from the colloquy is a per se defect which requires the case to be remanded to the Common Pleas Court for trial. It might be helpful to review the quite brief history of the contact of the Supreme Court with the colloquy upon the waiver of a jury trial. Rule 1101 was adopted in 1968 and while it has been amended, those amendments do not appear pertinent to this discussion.

The Supreme Court in a unanimous 1971 decision, Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241 (1971), affirmed the judgment of sentence after determining that, "the on-the-record colloquy at the time he [defendant] entered his plea reveals it was unquestionably voluntary and intelligent. The requisites of due process and Rule 319 of the Rules of Criminal Procedure, 19 P.S.A. were satisfied." Id. at 54-55, 282 A.2d at 244 (footnote omitted). While it is true the court refers to Rule 319, the requirement that a judge must determine that a guilty plea is "voluntary and understandingly tendered", the jury trial waiver colloquy was included in the guilty plea colloquy, so that it is clear the Supreme Court determined not only that the guilty plea colloquy under Rule 319 was satisfactory and adequate but also determined that the waiver of the jury trial was a knowing and intelligent waiver. The opinion of the court quotes for a full one and one-half pages the colloquy employed by the court after an introductory paragraph that reads:

After a lengthy series of questions by the prosecuting attorney exploring the appellant's understanding of his actions, the court proceeded as follows. This portion of the colloquy is set out in detail because of its commendable thoroughness. Id. at 54, n. 2, 282 A.2d at 244.

It is significant to note that this commendably thorough colloquy between the court and the defendant did not include any reference to the need of unanimity of a jury verdict to convict.

It was in 1973 that the Supreme Court in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), rejected a proposal that the court adopt a per se prophylactic rule reversing convictions for failure to comply with Rule 1101; instead the court indicated that where the waiver was proven to be a knowing and intelligent waiver, such a prophylactic rule is unnecessary. The court there did state there were three essential ingredients that are basic to a concept of a jury trial--the jury must be chosen from members of the community, the verdict must be unanimous and the accused must be allowed to participate in the selection of the jury panel--and concluded that the record did not justify a finding that there had been by that defendant a knowing and intelligent waiver. Justice Eagen concurred in the result while Chief Justice Jones dissented.

On March 23, 1978, a majority opinion of four members of the court reviewed, in Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), a jury trial waiver colloquy that made no reference to any of the three "essential ingredients of a jury trial" that the Court in Williams, supra, 454 Pa. at 373, 312 A.2d at 600, had declared as necessary for a jury trial waiver to be knowing and intelligent. The Morin majority ruled that the inadequacy of the colloquy was so complete that it would serve no purpose to remand the case to the trial court for an evidentiary hearing since the defect was such that a trial court could not rule the defendant had knowingly and intelligently waived the right to a jury trial. Chief Justice Eagen dissented and Justice Pomeroy filed a dissenting opinion, while Justice Packel did not participate in the decision.

Later that year, the Supreme Court issued two opinions on the same day, namely, November 18, 1978, in which that court declared, by a four-three margin in each case, that a defendant did not effectively waive his right to a jury trial even though the only omission was the...