Com. v. Giaccio

• Court: Superior Court of Pennsylvania
• Citation: 311 Pa.Super. 259,457 A.2d 875
• Parties: COMMONWEALTH of Pennsylvania v. Jay GIACCIO, Appellant.
• Decision Date: 18 April 1983

Page 875

457 A.2d 875 311 Pa.Super. 259 COMMONWEALTH of Pennsylvania
v.
Jay GIACCIO, Appellant. Superior Court of Pennsylvania. Argued Dec. 5, 1979.
Filed Feb. 4, 1983.
Reargument Denied April 18, 1983.

[311 Pa.Super. 260] Janet W. Mason, Asst. Public Defender, West Chester, for appellant.

Robert J. Donatoni, Asst. Dist. Atty., West Chester, for Commonwealth, appellee.

Before SPAETH, CAVANAUGH and O'KICKI, ^* JJ.

SPAETH, Judge:

Appellant was convicted by a jury of recklessly endangering another person and terroristic threats. On appeal he argues that he was unconstitutionally denied the right to waive a trial by jury and to be tried by a judge. The Commonwealth, however, asserts that it has an absolute right to a jury trial on the basis of 42 Pa.C.S. § 5104(c), which provides: "In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused." In Commonwealth v. Sorrell, --- Pa. ---, 456 A.2d 1326 (1982), the Supreme Court declared 42 Pa.C.S. § 5104(c) unconstitutional. ¹ We therefore reverse and remand for proceedings consistent with that opinion.

Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a [311 Pa.Super. 261] 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. The waiver shall be in writing, made a part of the record and shall be in the following form:

IN THE COURT OF COMMON PLEAS OF THE COUNTY OF ...... CRIMINAL ACTION NO. ...... OF

Page 876

...... 19.... COMMONWEALTH OF PENNSYLVANIA

v.

___

WAIVER OF JURY TRIAL

AND NOW, ........, 19...., comes the defendant and pleads not guilty and with the consent of his attorney and the approval of the judge, waives a jury trial and elects to be tried by a judge without a jury.

___

Defendant

___

Attorney for Defendant

___

Judge

Pa.R.Crim.P. 1101.

In Sorrell, the Supreme Court ruled that 42 Pa.C.S. § 5104(c) is incompatible with Rule 1101 because by entitling the Commonwealth to a jury trial it precludes the trial court "from exercising the discretion conferred by Rule 1101 in assessing whether a non-jury trial should be permitted." At ---, 456 A.2d 1326.

Rule 1101 and Sorrell do not give appellant an absolute right to a non-jury trial. Instead, in deciding whether to allow a defendant to waive his right to a jury trial, the trial court must "tak[e] into account all relevant considerations." Commonwealth v. Sorrell, supra, at ---, 456 A.2d 1326.

[311 Pa.Super. 262] It is not clear what procedure the trial court should follow, or which considerations it should weigh, in deciding whether to approve a waiver. It is clear that under Rule 1101 the defendant must have "the consent of his attorney, if any," and also the "approval" of "a judge of the court in which...