Com. v. Gumpert
| Citation | 354 Pa.Super. 595,512 A.2d 699 |
| Parties | COMMONWEALTH of Pennsylvania, v. Andrew L. GUMPERT, Appellant. |
| Decision Date | 18 July 1986 |
| Court | Superior Court of Pennsylvania |
William T. Wilson, Pittsburgh, for appellant.
Edward J. Greene, Asst. Dist. Atty., West Chester, for Com. appellee.
Before CIRILLO, P.J., and ROWLEY and WIEAND, JJ.
Appellant Andrew L. Gumpert was charged with driving under the influence of alcohol, 75 Pa.C.S. § 3731. He was initially tried before a jury, but no judgment resulted because the jurors could not reach a unanimous decision. A subsequent bench trial resulted in his conviction. On appeal, appellant challenges the conviction on the ground that prior to his bench trial there was no colloquy between the judge and himself to establish that he knowingly waived his right to a trial by jury.
Initially, we must consider a procedural shortcoming in the manner in which this appeal was taken. Appellant has captioned it as an appeal from the order denying his post-trial motions. The Commonwealth urges that insofar as such appeals must be taken from the final judgment of sentence, the present appeal must be dismissed as interlocutory.
If parties were to appeal from every trial court decision as it was made in the course of a case, such a "shotgun" approach to appellate review would swell our dockets and might even create the possibility of inconsistent decisions related to the same trial. Thus, there exists a long standing rule that parties must wait until a final decision is rendered, after which they may air their grievances in a single orderly appeal. In the criminal context, it is the judgment of sentence which marks the completion of the trial court proceedings, and accordingly (with certain carefully delineated exceptions), a judgment of sentence is a prerequisite to appealability. Commonwealth v. Luciano, 345 Pa.Super. 83, 497 A.2d 655 (1985); Commonwealth v. Reagan, 330 Pa.Super. 417, 479 A.2d 621 (1984); Commonwealth v. Smith, 322 Pa.Super. 389, 469 A.2d 676 (1983). Indeed, in reviewing a decision from the 3rd Circuit, the Supreme Court of the United States recently recognized the importance of this rule in Flanagan v. United States, 465 U.S. 259, 263-264, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288, 293-294 (1984):
The final judgment rule serves several important interests. It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice.
We are satisfied that in the present case the error is purely one of form and not substance, and therefore cannot possibly be in contravention of the principles just set forth. The appeal is captioned as being from an interlocutory order, but it is clear that the case had been fully and finally resolved when the appeal was taken; the notice of appeal and judgment of sentence were entered on the docket on the same day. Thus, any and all trial court errors that might exist could be considered on this single appeal. Accordingly, we will not deem appellant's error fatal. This is not to say we are indifferent to the proper captioning of appeals, but only that justice is best served by proceeding to the merits of the case.
It is undisputed that prior to the bench trial appellant was given no jury waiver colloquy pursuant to Pa.R.Crim.P. 1101. Appellant maintains that it is the duty of the trial court to engage in a colloquy with the accused which demonstrates a knowing and intelligent waiver of the right to a trial by jury, and that failure to provide such a colloquy is reversible error. The Commonwealth urges that insofar as no objection was made to the absence of a colloquy until post-trial motions, appellant has waived any challenge to the trial court's failure to comply with Rule 1101. On this point, appellant contends such error is not of the type subject to waiver for failure to object at trial.
Whether a contemporaneous objection must be made to the absence of a waiver-of-jury-trial colloquy is an issue which has not been often addressed. 1 Whereas in this case, trial counsel is raising the issue on appeal, more often when the issue is presented for our consideration, it is argued by new counsel who primarily urges the ineffectiveness of trial counsel for never raising the issue at all; it is couched in terms of trial counsel's failure to address the possible colloquy deficiency post-trial, without referring to any earlier opportunity to make an objection on the same point. See, e.g., Commonwealth v. Easley, 341 Pa.Super. 381, 491 A.2d 868 (1985); Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983); Commonwealth v. King, 317 Pa.Super. 196, 463 A.2d 1152 (1983); Commonwealth v. Williams, 301 Pa.Super. 271, 447 A.2d 963 (1982); Commonwealth v. Fortune, 289 Pa.Super. 278, 433 A.2d 65 (1981); Commonwealth v. Jones, 272 Pa.Super. 444, 416 A.2d 539 (1979). Thus, since the decisions which follow such arguments similarly discuss the ineffectiveness in relation to the absence of a post-trial motion, the implication arose that it is enough to raise the issue for the first time in post-trial motions. See, e.g., Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978).
We are aware of no case, however, which holds expressly that no contemporaneous objection need be made to a faulty (or, as here, completely omitted) colloquy. In our view, such a holding would be contrary to Pa.R.Crim.P. 1123(a), which limits post-trial motions to those matters addressed in pre-trial proceedings or at trial. Apparently cognizant of the broad scope of Rule 1123, appellant alternately urges his point from a slightly different angle: if counsel is forced to urge compliance with Rule 1101 prior to trial in the accused's presence, the deficiency will be cured because the accused will at that time be made aware of the Rule 1101 mandates. In all candor we find this argument shocking. What counsel is really arguing is that curing the defect when it arises is to be avoided because he will then have one less arrow in his quiver with which to attack the proceedings on appeal. Counsel attempts to soften this position by asserting that in fact the defect cannot be cured in the presence of the defendant if there is ever to be any appellate review of the issue because if it is cured there will be nothing for us to consider. In light of the seemingly endless flow of cases on our docket, we only wish that more problems could be so easily resolved. When the accused 's interests are placed in the forefront, it is far better to cure the error at trial and never resort to an appeal at all. We are at a loss as to where counsel derives his supposition that there should be some appellate review of the matter simply for its own sake. In any event, history tells us that counsel can rest assured that even if objected to at trial, Rule 1101 deficiencies will nonetheless require appellate review from time to time. A case where the deficiency can be cured, however, cannot and should not be among these.
As a corollary, counsel maintains that to place the burden on him to make an objection at trial improperly shifts the burden away from the trial judge, who in counsel's view is unilaterally saddled with the obligation of providing an adequate colloquy. At a minimum, this position ignores the many cases which have considered counsel 's ineffectiveness in not securing an adequate colloquy.
In Commonwealth v. Greene, 483 Pa. 195, 198-199, 394 A.2d 978, 979-98 (1978), Justice Pomeroy, joined by Justice Larsen, recognized in a dissenting opinion that contrary to appellant's position, it is not the judge's duty alone to provide a proper colloquy, thus making a contemporaneous objection proper:
Now ... that there is virtually a prescribed content to the colloquy which must precede acceptance of a jury trial waiver, I suggest that objections to the sufficiency or accuracy of the colloquy should initially be raised at the time of the colloquy and before the non-jury trial has been conducted. I am mindful of the fact that Pa.R.Crim.P. 1101 as interpreted by the Morin decision [supra] places upon the trial judge the obligation of seeing to it not only that the colloquy relative to jury waiver shall "appear on the record," but also that the colloquy which appears on the record shall be...
To continue reading
Request your trial
-
Com. v. Krum
...not objected to by the appellee. In that event, the failure to comply with Rule 2119(f) may be overlooked. See: Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986) (error in captioning appeal as being taken from order denying post-trial motions rather than final judgment of sent......
-
Com. v. Sanchez
...though appellant violated rules limiting statement of questions presented, it did not state why). In fact, in Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986), the Commonwealth, appellee in that case, had complained that the appellant's captioning of his appeal as an appeal f......
-
Com. v. Beattie
...court when the appeal was taken. We will therefore treat the captioning defect as harmless. As we stated in Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986), "[t]his is not to say we are indifferent to the proper captioning of appeals, but only that justice is best served by ......
-
Com. v. Rivera
...not objected to by an appellee. In that event, the failure to comply with Rule 2119(f) may be overlooked. See: Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986) (error in captioning appeal as being taken from order denying post-trial motions rather than final judgment of sente......