Com. v. Dowling
| Decision Date | 19 November 2008 |
| Docket Number | No. 101 MAP 2007.,101 MAP 2007. |
| Citation | 959 A.2d 910 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Eric DOWLING, Appellant. |
| Court | Pennsylvania Supreme Court |
Richard S. Packel, Esq., for Eric Dowling.
William R. Toal, III, Esq., A. Sheldon Kovach, Esq., George Michael Green, Esq., Delaware County District Attorney's Office, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD and McCAFFERY, JJ.
Pennsylvania Rule of Criminal Procedure 621(B) provides in full that "[a]t any time before the commencement of trial, a waiver of a jury trial or the judge's approval thereof may be withdrawn." This appeal presents the issue of whether Appellant's trial had commenced at the time he sought to withdraw his jury trial waiver and reinstate his right to a trial by jury, where both parties waived opening arguments, but no witnesses had yet been called. We hold that trial had commenced for purposes of Pa.R.Crim.P. 621(B) and, therefore, the trial court did not err in denying Appellant's request to withdraw his jury trial waiver. Accordingly, for the reasons set forth herein, we affirm.
The record discloses that on July 3, 2002, Detective John Newell of the Delaware County Drug Task Force was working in an undercover capacity near Chester High School in the City of Chester, when he met with Appellant and exchanged a large sum of money for one glass vial of phencyclidine (PCP).1 When Detective Newell inquired as to the possibility of additional purchases, Appellant gave the detective his telephone number and told him to call when he wanted more drugs.
Throughout the balance of July, 2002, Detective Newell called Appellant four times to purchase PCP. After each call, Appellant met Detective Newell at or near where the first transaction took place and exchanged large sums of money for glass vials of PCP. Using these exchanges as the requisite probable cause, police obtained a search warrant and recovered from Appellant's residence a small amount of marijuana, bagging material, a scale, PCP residue, and cash. In due course, Appellant was charged with multiple counts of possession of a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia.2
Appellant's case was set for trial several times between November of 2003 and May of 2005, and each time the matter was continued. On June 15, 2005, Appellant requested a bench trial and, through counsel, provided to the trial court a written jury trial waiver form, confirming that Appellant had reviewed the waiver form with his counsel, understood its contents, initialed it, and signed it in the presence of his attorney. Immediately thereafter, the trial court conducted an extensive on-the-record colloquy, and determined that Appellant's jury trial waiver was voluntary, knowing, and intelligent. The court thereafter inquired as follows:
N.T. dated 6/15/2005 at 30-31.
The following day, before the Commonwealth called its first witness, Appellant's counsel informed the court that Appellant wished to withdraw his jury trial waiver and proceed to a jury trial. The trial court took a recess to consider the issue and subsequently denied Appellant's motion to withdraw his jury trial waiver. The court found that trial had already commenced for purposes of Pa.R.Crim.P. 621(B) and, therefore, Appellant could not withdraw his jury waiver as of right. The court then denied Appellant's request to withdraw his waiver.
The case proceeded to a bench trial, where Detective Newell testified regarding the several drug purchases he made from Appellant. Appellant was convicted of six counts of possession of a controlled substance, five counts of possession with intent to deliver a controlled substance, and one count of possession of drug paraphernalia. On December 8, 2005, Appellant was sentenced to an aggregate term of ten to twenty years of incarceration, followed by one year of probation.
On appeal to Superior Court, Appellant contended that he was entitled to a new trial because he exercised his right to withdraw his jury waiver prior to commencement of trial, thereby resurrecting his right to be tried by a jury. The Superior Court rejected Appellant's contention, and affirmed his judgment of sentence in an unpublished memorandum. The court recognized that Pa.R.Crim.P. 621(B) permits the withdrawal of a jury trial waiver as of right "at any time before the commencement of trial." In deciding that trial had begun, the court relied on its decision in Commonwealth v. Wright, 362 Pa.Super. 464, 524 A.2d 970 (1987), which, in turn, relied by analogy upon Pa.R.Crim.P. 600(B) (Prompt Trial) and the Comment thereto.3 Rule 600(B) states:
(B) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.
The Comment to Rule 600 states:
A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial. It is not intended that preliminary calendar calls should constitute commencement of a trial. . . .4
Applying this construct to the facts presented, the Superior Court concluded that Appellant's trial had already commenced when he attempted to withdraw his jury trial waiver in that both defense counsel and the Commonwealth had waived opening arguments. Thus, the Superior Court concluded that the trial court did not abuse its discretion in holding that trial had commenced.5
This Court granted allocatur to determine when trial commences for purposes of Pa.R.Crim.P 621(B). The interpretation of the Rules of Criminal Procedure presents a question of law and therefore, notwithstanding the Superior Court's "slip of the tongue," our standard of review is de novo and our scope of review is plenary. In re Hickson, 573 Pa. 127, 821 A.2d 1238, 1242 (2003).
Preliminarily, we recognize that it is undeniable that Appellant has a constitutional right to a jury trial. See Pa. Const. art. I, §§ 6, 9; United States Const. amends. VI, XIV. A defendant may waive this right, provided such waiver is knowing and voluntary, and the accused is aware of the essential ingredients of a jury trial. Commonwealth v. Houck, 596 Pa. 683, 948 A.2d 780, 787 (2008); Pa. R.Crim.P. 620 (Waiver of Jury Trial). As noted, Appellant does not challenge the propriety of his jury trial waiver, but rather contends that he should have been permitted to withdraw it pursuant to Pa. R.Crim.P. 621(B) because, in his view, trial had not yet commenced.6
Appellant argues that the Superior Court erred by relying upon its decision in Wright, applying to this case, involving the waiver of a jury trial under Pa.R.Crim.P. 621(B), the definition of "commencement of trial" set forth in Pa.R.Crim.P. 600(B). He argues that because Wright is a Superior Court opinion, we are not bound by it, and, further, that the decision is not persuasive because it fails to consider alternative interpretations of the presented question. Moreover, Appellant argues that Pa. R.Crim.P. 600(B) begins with the phrase, "[f]or the purpose of this rule," and therefore should not be analogized to the instant scenario, arising under Rule 621(B).
Advocating that on these bases this Court should not adopt the Wright rationale, Appellant offers an alternative construction of "commencement of trial" which, if applied, would render his withdrawal of jury trial waiver timely. Specifically, he relies on the case law interpretation of when jeopardy attaches for purposes of double jeopardy, which is when the trial court has begun to hear the evidence. See Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (). Similarly, Appellant cites the Pennsylvania statutory standard for attachment of double jeopardy set forth at 18 Pa.C.S. § 109(4), which bars a subsequent prosecution when the former prosecution is "improperly terminated after the first witness is sworn." Id. Appellant urges us to adopt a criteria consistent with these measures to define "commencement of trial," asserting that such construction offers more protection of the constitutional right to trial by jury. As noted, if we were to accept Appellant's argument, his withdrawal of his jury trial waiver would be prior to trial's commencement, entitling him to a new trial.
Not surprisingly, the Commonwealth advocates the adoption of the Rule 600 analytical framework for determining when trial commences for purposes of Pa. R.Crim.P. 621(B), as set forth in Wright, and as applied by the Superior Court in the instant case. It asserts that most states allow a trial court to exercise discretion when considering, at any time during the proceedings, whether to allow the withdrawal of a jury trial waiver. See Marquez v. State, 921 S.W.2d 217, 220 (Tex.Crim.App.1996) (). The Commonwealth maintains that because Pa.R.Crim.P. 621(B) permits the absolute withdrawal of the jury trial waiver prior to commencement of...
To continue reading
Request your trial
-
State v. Kaulia
...have defined commencement as the point when some substantive or meaningful event has occurred. See Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910, 915 (2008) (generally, “commencement of trial should be marked by a substantive, rather than pro forma, event,” defined as “when a court has......
-
State v. Kaulia, SCWC-11-0000089
...of Rule 43, courts have defined commencement as the point when some substantive or meaningful event has occurred. See Commonwealth v. Dowling, 959 A.2d 910, 915 (Pa. 2008) (generally, "commencement of trial should be marked by a substantive, rather than pro forma, event," defined as "when a......
-
State v. Kaulia
...43, courts have defined commencement as the point when some substantive or meaningful event has occurred. See Commonwealth v. Dowling, 959 A.2d 910, 915 (Pa. 2008) (generally, "commencement of trial should be marked by a substantive, rather than pro forma, event," defined as "when a court h......
-
Commonwealth v. Jemison
...issue presented is a pure question of law and thus our standard of review is de novo and our scope is plenary. Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910, 913 (2008). In Stanley, the defendant-appellant, who had previously been convicted of murder, was on trial for, inter alia, pers......