Com. v. Brown
Decision Date | 27 September 1976 |
Parties | COMMONWEALTH of Pennsylvania v. George W. BROWN, Appellant. |
Court | Pennsylvania Superior Court |
Steven Foldes, Harrisburg, for appellant.
Marion E. MacIntyre, 2nd Asst. Dist. Atty., Harrisburg, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
VAN der VOORT, Judge:
On September 16, 1974, appellant George Walter Brown pleaded guilty to three charges of robbery. The lower court accepted the guilty pleas and sentenced appellant to pay costs and seventy-five dollars in fines, to make restitution in the amount of one hundred dollars, and to serve three concurrent terms of five to fifteen years imprisonment. No direct appeal was taken; however, appellant filed a petition on December 10, 1974 under the Post Conviction Hearing Act, 1 alleging that he had been denied the right to representation by competent counsel, that his guilty pleas had been unlawfully induced, and that a right guaranteed him by the Constitution or laws of this state had been abridged. The lower court, by Order dated January 8, 1975, denied appellant's petition without a hearing. Appellant then took this appeal to our Court, alleging that he had been ineffectively represented by counsel in that no appeal had been taken to challenge (1) the effectiveness of his waiver of the right to trial by jury, (2) the validity of his guilty plea. The matter is properly framed for disposition under the Post Conviction Hearing Act; the question which we must answer is whether the lower court properly denied appellant a hearing on his petition.
Appellant argues that he did not knowingly and voluntarily waive his constitutional rigt to a jury trial; specifically, he alleges that he was not advised that he had a right to participate in selecting a jury of his peers, and that the lower court did not obtain from him the written waiver required by Rule 1101 of the Pennsylvania Rules of Criminal Procedure. The transcript of the guilty plea colloquy clearly reveals that appellant was properly advised of his rights:
In addition to erroneously stating that he had not been advised of his jury trial rights, appellant mistakenly relies on Rule 1101. Rule 1101 states:
'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. . . .'
(Emphasis added).
It is clear that this rule was intended to apply when a defendant pleads Not guilty and desires to be tried by a judge sitting without a jury. Although § 1180--9 of the Post Conviction Hearing Act states that '(i)f a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing . . .,' the Act further specifies that 'the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.' Appellant's argument that his counsel was ineffective for failing to challenge on appeal the validity of his waiver of the right to a jury trial, is a classic example of a frivolous issue; the lower court was well justified in refusing to entertain appellant's argument.
Appellant further argues that he was ineffectively represented by counsel because his trial counsel allegedly persuaded him to plead guilty by promising appellant that he would receive a sentence of only three to seven years. When a defendant has pleaded guilty to a charge, it will be presumed that he was aware of what he was doing, and the burden will be upon him to prove otherwise. Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 85, 202 A.2d 299 (1964), Cert. denied, 379 U.S. 976, 85 S.Ct. 677, 13 L.Ed.2d 567 (1965); see Commonwealth ex rel. Kern v. Maroney, 423 Pa. 369, 223 A.2d 706 (1966). In the case before us, an extensive colloquy was conducted. A factual basis for the pleas was established, and appellant was questioned by the prosecuting attorney, by his own counsel, and by the court:
'BY MR. ZERBE:
'BY MR. FRESE:
'
'BY THE COURT:
'BY MR. FRESE:
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