Com. v. Morin

• Decision Date: 23 March 1978
• Parties: , 3 A.L.R.4th 592 COMMONWEALTH of Pennsylvania v. Frank MORIN, Appellant.
• Court: Pennsylvania Supreme Court

Page 832

383 A.2d 832

477 Pa. 80, 3 A.L.R.4th 592

COMMONWEALTH of Pennsylvania v. Frank MORIN, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 29, 1977.

Decided March 23, 1978.

[477 Pa. 83] Allen N. Brunwasser, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION

MANDERINO, Justice.

On June 25, 1974, appellant, Frank Morin, was convicted of theft by deception after a nonjury trial in the Court of Common Pleas of Allegheny County. Post-verdict motions were filed on June 28, 1974, and denied on October 11, 1974. Appellant was sentenced to three and one-half to seven years imprisonment. On appeal, the Superior Court affirmed. Commonwealth v. Morin, 237 Pa.Super. 533, 352 A.2d 189 (1975). We granted appellant's petition for allowance of appeal, and this appeal followed. For the reasons that follow, we reverse the judgment of sentence and grant a new trial.

Appellant was represented by the same counsel at trial and on appeal to the Superior Court. Represented by new counsel for the first time on this appeal, appellant contends that he was denied effective assistance of counsel because his previous counsel failed to raise, either in post-verdict motions or in the appeal to the Superior Court, the issue of whether appellant knowingly and intelligently waived his right to a jury trial. We agree.

The prosecution initially argues that the issue of ineffective waiver of trial by jury is not properly reviewable by this Court because appellant's brief did not present the colloquy issue in terms of ineffective assistance of counsel. We reject this argument. When appellant's brief first challenged the on-the-record colloquy, it specifically incorporated into that argument the ineffectiveness-of-counsel argument which was fully argued in a subsequent portion of the brief. We are satisfied that appellant's challenge to the waiver colloquy, which first points out the deficiencies in the colloquy and then argues it was ineffectiveness not to raise those deficiencies in post-verdict motions or on appeal, is properly preserved for our review at this time.

It is true, as argued by the prosecution, that counsel may not be deemed ineffective for pursuing a course born of reasonable, calculated strategy, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), and that when it cannot be determined from the record whether counsel acted pursuant to such a reasoned course, the proper remedy is to remand the record for an evidentiary hearing on the issue. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). We may find that trial counsel's stewardship did not meet the standards required by the Constitution without the benefit of such a hearing, however, when it can be said from an examination of the record on appeal that no reasonable basis for counsel's decision could exist. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). This is such a case: Our examination of the record here leads us to conclude that under no circumstances can it be said that previous counsel's failure to raise this issue resulted from any reasonable strategy designed to effectuate his client's interests. See Commonwealth v. Twiggs, supra, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. 599, 235 A.2d 349 (1967).

The waiver of a jury trial is a personal right of the accused. The prosecution has the burden of affirmatively establishing waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Rule 1101 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, provides that a defendant may waive the right to a jury trial. Such a waiver is to be approved by the court. Before it may be said that defendant has knowingly and intelligently waived the right to a jury trial, the on-the-record colloquy must show that the defendant fully comprehended the significance of the right being waived. Rule of Criminal Procedure 1101 provides:

"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 from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record." (Emphasis added.)

The colloquy must indicate, at a minimum, that the defendant knew the essential protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards. Among the "essential ingredients of a jury trial," an understanding of which the accused must possess before a knowing and intelligent jury trial waiver can be made, are the requirements that the jury be composed of one's peers chosen from members of the accused's community, that the accused has the right to participate in the selection of the jury, and that every member of that jury must be convinced, beyond a reasonable doubt, of the accused's guilt. Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973).

The colloquy in the instant case is as follows:

"Q. (By defense counsel) Mr. Morin, I have explained to you that you have a right to trial by jury; is that correct?

A. Yes.

Q. I have also explained to you at your option you may have the case heard by Judge Ridge, and Judge Ridge will be the trier of fact as well as the determiner of law; have I explained that?

A. Yes.

Q. Have you freely decided that you would prefer to have Judge Ridge try the case non-jury?

A. Yes.

Q. You are aware that you have a right to a trial by jury?

A. Yes, sir.

Q. There have been no promises or other inducements to make you make this decision, have there?

A. No.

Q. In the last 24 hours have you had any drugs or intoxicating drinks?

A. No.

The Court: Do you have any questions at all about the procedure that is going to be employed?

The Defendant: No, your Honor.

The Court: All right. We will accept your waiver. We understand you wish a non-jury trial."

The above colloquy clearly fails to meet the standards required by Rule 1101 and Commonwealth v. Williams, supra. No explanation whatsoever of any of the "essential ingredients of a jury trial" appears on the record. Appellant was not told that the jury would be chosen from his peers in the community, that he could participate in selecting the jury, or that a unanimous jury would have to be convinced beyond a reasonable doubt that appellant was guilty of the crime charged.

The only conclusion possible is that appellant's previous counsel was ineffective for failing to raise the issue of the validity of the jury trial waiver in post-verdict motions and on appeal. Counsel filed post-verdict motions of the "boiler plate" variety, challenging the correctness of the trial court's finding of guilt. The validity of the jury trial waiver is not mentioned in the post-verdict motions, yet the on-the-record waiver colloquy is patently defective. That fact, standing alone, should cause any attorney competently pursuing the client's interests to raise the issue in post-verdict motions. Failure to bring that issue before the post-verdict and appellate courts cannot be said to have had a reasonable basis designed to effectuate appellant's interests on appeal.

The prosecution argues, however, that even if counsel was ineffective for not raising the adequacy of the waiver-of-jury-trial colloquy, the case should be remanded to the trial court for an evidentiary hearing to establish whether appellant knowingly and intelligently waived the right to a jury trial despite the inadequacy of the colloquy. We recently rejected a similar argument in Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d at 1212 (1978). Kulp involved a purported waiver of the right to trial, in which the prosecution relied on Commonwealth v. Williams in arguing that in the case of an inadequate colloquy, an evidentiary hearing, and not a new trial, was the appropriate remedy.

"In asserting its contention that remand is the appropriate remedy, the Commonwealth ignores that (Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974)) was decided after Williams. While Ingram has been held not to have changed the requirement as to the content of the colloquy, Commonwealth v. Schork, 467 Pa. 248, 356 A.2d 355 (1976); Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976), it unquestionably stressed the mandate of the rule that there be an on-the-record colloquy :

'We reiterate here what was said in Ingram, supra, at 204-205, 316 A.2d at 81: "Adherence to (the guidelines set out in the Comments to Rule 319(a)) will serve to protect the rights of defendants while simultaneously facilitating appellate review." Failure to satisfy these minimal requirements will result in reversal.' Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824, 827 (1976). (citations omitted).

"For pleas entered after our decision in Ingram, there can be no excuse for a hearing court to have failed to recognize the need of an adequate on-the-record colloquy reflecting a knowledgeable and intelligent waiver." (Emphasis in original.)

Both Pa.R.Cr.P. 319 (waiver of right to trial), which was involved in Kulp, and Pa.R.Cr.P. 1101 (waiver of right to jury trial), which was involved in Williams, state that the colloquy "shall appear on the record." Both rules are designed to protect constitutional rights. There is no valid reason for interpreting the language "shall appear on the record" in Rule 1101 any differently than the identical mandate in Rule 319. The policies underpinning our decision in Kulp protection of constitutional rights and preservation of effective appellate review of purported waivers of those rights are equally apposite in the context of waiver of trial by jury.

Because our disposition of this issue, we need not...