Com. v. Garrison

• Decision Date: 27 September 1976
• Citation: 242 Pa.Super. 509,364 A.2d 388
• Parties: COMMONWEALTH of Pennsylvania v. Charles GARRISON, Appellant.
• Court: Pennsylvania Superior Court

Page 388

364 A.2d 388

242 Pa.Super. 509

COMMONWEALTH of Pennsylvania v. Charles GARRISON, Appellant.

Superior Court of Pennsylvania.

Sept. 27, 1976.

Petition for Allowance of Appeal Denied Nov. 22, 1976.

James J. DeMarco, Philadelphia, (Court Appointed), for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge.

The appellant, Charles Garrison, was tried by a jury and found guilty of charges of arson endangering persons, burglary and conspiracy. Following post-trial motions and sentencing, he filed this direct appeal with our Court.

The charges arose out of a series of incidents wherein the appellant was involved in a heinous series of acts calculated to terrorize a female acquaintance and her roommate. These acts included the burglary of their premises, setting of a fire at their door which fortunately expired before it could consume the whole apartment house in which they resided, and personal threats of violence towards both women both before and after the arson. Appellant acted with the aid of others in some of these escapades.

On this appeal, several claims of error are raised. The appellant first contends that the trial judge committed several errors in his charge to the jury. ¹ It is argued, Inter alia, that the trial court erred by incorrectly charging the jurors on the element of recklessness in the arson crimes charged and by unfairly commenting upon the evidence presented. Neither of these allegations of error were raised at trial at the conclusion of the charge. While some specific claims of error were brought to the court's attention by defense counsel, his general exception to the charge does not adequately preserve the questions discussed above for appellate review and must be deemed to have been waived. See Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure; Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Riddick, 232 Pa.Super. 333, 334 A.2d 705 (1975).

Appellant raises other contentions concerning the jury charge which were preserved by appropriate specific objection at the conclusion of the charge and by inclusion in post-trial motions. Appellant's claim that the charge incorrectly explained the reasonable doubt standard to the jury is completely devoid of merit. Our review of the charge reveals that the explanation of that standard by the trial judge was clear, correct and in compliance with a multitude of appellate decisions.

The appellant also argues that the lower court incorrectly defined the requisite elements necessary to prove the arson charge. It is claimed by appellant that the Commonwealth had to prove the burning of a building and not a mere scorching or discoloration. The relevant law, prior to 1973, was contained in 18 P.S. § 4905, which defined arsonist as one who '. . . sets fire to or burns . . . any dwelling house.' However, the present Crimes Code, applicable in the instant prosecution, provides guilt for one who '. . . starts a fire or causes an explosion.' See 18 Pa.C.S. § 3301, effective June 6, 1973. While appellant cites cases dating back to the early eighteenth century to support his rationale, his contentions clearly lack merit under the present statute. If the appellant's argument were carried to its logical extreme, no arsonist could be convicted if firefighters saved a building some step short of total destruction by fire. We note the following Comment to § 220.1 of the Model Penal Code, upon which our statute is based:

'Section 220.1 . . . is framed in terms of starting a fire or causing an explosion. Thus, the actor is guilty of arson even though the fire is extinguished before any significant damage is done. In effect, the attempt is punishable equally with the completed offense.'

We agree with that comment and find appellant's contentions to the contrary to be without merit.

Next, the appellant contends that the lower court improperly denied him the right to waive a jury trial. The record shows that several days prior to the jury trial in the instant case, the appellant requested a non-jury trial. Judge McDermott (who finally presided at the appellant's trial), honored the appellant's request and sent him to another courtroom, where jury waivers and non-jury trials were scheduled. The appellant apparently did not waive jury trial when given that opportunity. Upon his return to the courtroom of Judge McDermott, the appellant indicated he would waive a jury trial before another judge, but would not waive one before Judge McDermott. From reading the record it becomes clearly apparent that appellant was 'shopping' for another judge. He even furthered these efforts by attempting to discharge his defense attorney on the day of trial, as will be more fully discussed below. We do not feel that the lower court's action in refusing to accept a jury waiver was erroneous in these circumstances.

Rule 1101 of the Pennsylvania Rules of Criminal Procedure expressly provides the trial judge with discretion in accepting a criminal defendant's waiver of jury trial. It provides, Inter alia, that '. . . the defendant May waive a jury trial with . . . approval by a judge of the court in which the case is pending.' It is well established that there is no constitutional prohibition to a court's denial in appropriate circumstances, of a defendant's request to be tried by a judge sitting without a jury. As the Supreme Court of the United States has said: '. . . of course, a jury trial could not be waived by (a criminal defendant) without the consent of the Government and of the court.' Serfass v. United States, 420 U.S. 377, 389, 95 S.Ct. 1055, 1063, 43 L.Ed.2d 265, 274 (1975). See also Federal Rule of Criminal Procedure 23(a); United States v. Farries, 459 F.2d 1057 (3rd Cir. 1972), cert. denied 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145 (1972), cert. denied 410 U.S. 912, 93 S.Ct. 975, 35 L.Ed.2d 275 (1973).

In the instant circumstances, we find that the lower court committed no abuse of discretion in denying appellant's waiver request since it was apparent that the appellant's only purpose for attempting such waiver was to maneuver for a judge he thought might be more lenient or for other reasons more desirable. The lower court must examine the waiver of jury trial carefully since it constitutes a relinquishment of a...