Com. v. Carter

• Court: Superior Court of Pennsylvania
• Writing for the Court: CAVANAUGH
• Citation: 347 Pa.Super. 624,501 A.2d 250
• Decision Date: 16 December 1985
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gerald CARTER, Appellant. 01576 Phila. 1983

Page 250

501 A.2d 250 347 Pa.Super. 624 COMMONWEALTH of Pennsylvania, Appellee,
v.
Gerald CARTER, Appellant. 01576 Phila. 1983 Superior Court of Pennsylvania. Submitted April 4, 1985.
Filed Oct. 4, 1985.
Reargument Denied Dec. 16, 1985.

Page 251

[347 Pa.Super. 626] Elaine DeMasse, Asst. Public Defender, Philadelphia, for appellant.

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

Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.

CAVANAUGH, Judge:

In this appeal, Gerald Carter contends that his due process rights and rights under Pa.R.Crim.P. 1101 were violated because he was tried within the Career Criminal Program of the Philadelphia Common Pleas Court. He argues that because the judges in that program are aware that defendants assigned thereto have prior convictions, he was deprived of his right to be tried without a jury before an impartial factfinder, and that the District Attorney's Office usurped authority which our Supreme Court had previously denied it in creating a situation wherein the trial court had no choice but to grant a jury trial. Appellant's other contention is that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated. We disagree with these contentions and therefore affirm.

I.

Appellant was assigned by the Philadelphia District Attorney's Office to be tried within the "Career Criminal Program" of that county's Common Pleas Court. According to the lower court, this program was instituted by the District Attorney's Office and the President Judge for the purpose of more efficiently prosecuting recidivists. In order to be assigned to the program, a defendant must have been convicted of certain enumerated offenses a specified number of times. ¹ Once assigned to the program, a defendant[347 Pa.Super. 627] is tried before one of three judges. As the lower court stated: "Because of their assignment to the Program, judges know that, generally, defendants coming before them have been designated Career Criminals by the District Attorney." Lower Court op. at 18 n. 20.

The program's advantage apparently lies in that, unlike the usual practice in the District Attorney's Office, individual prosecutors are assigned to cases from pre-trial through the conclusion of the trial. Thus, a single, experienced prosecutor and a special staff deal with all stages of the case. According to the lower court, this procedure of "intensive vertical prosecution" helps to avoid excessive delays and promotes the more efficient prosecution of repeat offenders.

Appellant contends that he was unable to exercise his right to waive a jury trial because the judge before whom he was tried was aware that he had a prior record. This court has previously disposed of this argument in Commonwealth v. Hailey, 332 Pa.Super. 167, 172-73, 480 A.2d 1240, 1242-43 (1984):

Appellant also challenges the administrative procedure employed by the Philadelphia District Attorney's Office known as the Career Criminal Program. Appellant claims that cases in which the accused has certain prior convictions are assigned to one of three designated judges and this assignment effectively denies an accused his "right" to a non-jury trial because the trial judge knows the accused has prior convictions. Appellant's argument must fail as it is based on an incorrect premise; an accused does not have an absolute right to a bench trial. Commonwealth v. Sorrell,

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500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983).

In Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), the United States Supreme Court wrote:

[347 Pa.Super. 628] In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury.

In Singer, the court upheld the Federal Rule whereby the defendant's right to waive a jury trial is conditioned on the consent of both court and prosecutor. "[I]f either of them refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury--the very thing that the Constitution guarantees him." Singer, supra, 380 U.S. at 36, 85 S.Ct. at 790, 13 L.Ed.2d at 638. (In Pennsylvania, Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) denied the prosecutor the absolute right to demand a jury trial.) A defendant simply does not have an absolute right to waive a jury trial. Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983). Therefore, we must conclude that there has been no violation of due process in the instant case.

Appellant also argues that in assigning him to the Career Criminal Program, the District Attorney's Office has accomplished indirectly what it is not permitted to do directly. In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), our Supreme Court denied the prosecution the absolute right to demand a jury trial (by vetoing a defendant's attempted jury trial waiver). "While the prosecutor's concurrence or opposition to a defense request for a non-jury trial is a relevant consideration in determining the mode of trial ... the decision whether to permit a non-jury trial is to be made by the court...." Sorrell, supra, 500 Pa. at 360, 456 A.2d at 1328. This holding was deemed to be consistent with Pa.R.Crim.P. 1101.

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 [347 Pa.Super. 629] from the defendant whether this is a knowing and intelligent waiver....

The appellant argues that by assigning him to the Career Criminal Program, the District Attorney's Office has left him no alternative but to request a jury trial and that the trial court has also been denied the discretion of granting a non-jury trial. Thus, argues appellant, the assignment to the program is tantamount to giving the prosecution an absolute right to a jury trial and contravenes both Sorrell and Rule 1101. Although we disagree, this contention warrants our careful consideration.

Judges frequently refuse to allow a defendant to waive a jury trial when they would be biased due to their knowledge of the defendant's previous record. See Commonwealth v. Sorrell, supra. "The trial court is not constitutionally prohibited from denying a defendant's request to waive a jury trial." Commonwealth v. Maxwell, 312 Pa.Super. 557, 561, 459 A.2d 362, 364 (1983). However, the Career Criminal Program allows the prosecutor alone the power to designate which recidivists will be assigned to the program. Appellant argues that the prosecutor has usurped authority which Sorrell, supra, and Rule 1101 meant to deny him.

According to Sorrell and Rule 1101, the prosecutor has no absolute right to a jury trial. The Career Criminal Program does not attempt to confer such a right on him. According to the lower court, this program was instituted not by the District Attorney alone, but in conjunction with the President Judge of the Philadelphia Court of Common Pleas. It was instituted in an attempt to control recidivism more effectively

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and the fact that it impinges upon a defendant's ability to waive his right to a jury trial is but a by-product of that worthy policy. Appellant and similar repeat offenders are hardly in a position to deny that their actions are the cause of this program. They will not now be heard to complain that they are denied their desired mode of trial. Lest we lose perspective of this issue, we note that as a result of our holding, recidivists will be accorded the very thing which our Constitution guarantees [347 Pa.Super. 630] them--the right to a jury trial. Appellant has not asserted that trial by jury--which for centuries has been the cornerstone of our system of jurisprudence--has in any way prejudiced him.

In Sorrell, our Supreme Court denied the...