Com. v. Smith
| Decision Date | 05 October 1982 |
| Citation | 450 A.2d 973,498 Pa. 661 |
| Parties | COMMONWEALTH of Pennsylvania, Petitioner, v. Carl Melvin SMITH, Jr. |
| Court | Pennsylvania Supreme Court |
Hubert David Yollin, Abington, for respondent.
Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.
The Commonwealth seeks allowance of appeal from an order of the Superior Court granting respondent a new trial on burglary, robbery, kidnapping, and related charges. Respondent was found guilty of the charges by a court sitting without a jury. The Superior Court granted relief on the ground that trial counsel provided ineffective assistance in failing to object to a defective jury-trial-waiver colloquy.
Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973).
The record is clear that respondent's understanding of these "essential ingredients" is not reflected in the on-the-record colloquy mandated by Pa.R.Crim.Proc. 1101. Although the judge explored respondent's understanding of the fact that "a jury would consist of twelve people who would be selected and sworn from a larger panel of jurors from all over [the county]," he did not explore respondent's understanding of either the fact that the jury's verdict would have to be unanimous or the fact that respondent could participate in jury selection.
Despite the deficient colloquy, the record also is clear that, at the close of the colloquy, respondent signed a written form which states that respondent "fully understand[s]" the ingredients of a jury trial, including the unanimity and defendant-participation requirements which were not explained in the colloquy. This form was also signed by respondent's counsel and by the trial judge who had conducted the colloquy.
Although the Superior Court acknowledged that respondent had signed the form reflecting respondent's full understanding of the right to a jury trial, the Superior Court felt obliged to order a new trial under this Court's decision in Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). There, a new trial was granted on a record that contained nothing other than a colloquy which was manifestly defective under the requirements of Pa.R.Crim.Proc. 1101. Thus "the only conclusion possible [was] that [the defendant's] previous counsel was ineffective for failing to raise the issue of the validity of the jury trial waiver." 477 Pa. at 86, 383 A.2d at 832.
Here, although the colloquy did not include an explanation of the unanimity and defendant-participation requirements,...
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