Commonwealth v. Williams
| Decision Date | 11 December 1974 |
| Parties | COMMONWEALTH of Pennsylvania v. Robert E. WILLIAMS, Appellant. |
| Court | Pennsylvania Superior Court |
Vincent J. Ziccardi, Defender, John W. Packel Chief, Appeals Div., Philadelphia, for appellant.
David Richman, Asst. Dist. Atty., Chief Appeals Div., Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
Following a waiver of trial by jury and a plea of not guilty, appellant was convicted by Judge Dwyer of two aggravated robberies, one burglary, and two firearms violations. On this appeal he does not attack these convictions. He contends rather that we should remand the record for an evidentiary hearing to determine whether his waiver of trial by jury was knowing and intelligent. In support of this contention he cites Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).
In Williams it was held that the record must show that the defendant Id. at 373, 312 A.2d at 600. In the present case the record contains an extensive colloquy. However, that colloquy does not specifically show that appellant knew of his right to participate in the selection of the jury panel. If Williams is applicable, therefore, a remand is required.
In Commonwealth v. Lockhart, 227 Pa.Super. 503, 322 A.2d 707 (1974), we held that the rule in Williams should not be applied to cases tried before its decision. Id. at 507--08, 322 A.2d at 709. The trial in the present case was on May 13, 1971. Williams, however, was filed on November 26, 1973. It would therefore seem that under Lockhart we must hold that appellant may not invoke Williams, and that we should dismiss the appeal. Before arriving at this conclusion, however, some further comment is in order, for the basis of deciding whether an appellate decision announcing a new rule should be applied retroactively is not always clearly understood. To clarify the reasoning it is necessary to distinguish three situations.
The first situation is when the appellate decision is not filed until after the conviction in question has become final, I.e., either no appeal from the conviction was taken and the time for appeal has expired, or an appeal was taken and on the appeal the conviction was affirmed. In this situation a true question of retroactivity is presented, and in deciding whether the appellate decision should be applied retroactively, the court will 'weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965). See Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969) ().
The second situation is where the appellate decision is filed after the conviction but before the conviction has become final, I.e., either the time for taking an appeal from the conviction has not expired, or an appeal has been taken but has not yet been decided. In this situation a true question of retroactivity is not presented, and in reviewing the conviction the court may apply the new rule announced by the appellate decision. Linkletter v. Walker, Supra, 381 U.S. at 622 n. 5, 85 S.Ct. 1731; Commonwealth v. Ellsworth, 421 Pa. 169, 176--77, 218 A.2d 249, 253 (1966); And see Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973) (). However, whether the court does apply the new rule will depend on the nature of the rule; this qualification will be discussed below.
The third situation is in between the first two: The conviction has become final; however, an appeal Nunc pro tunc is allowed, and the appellate decision is filed while that appeal is pending. The question then becomes this: Does the fact that an appeal Nunc pro tunc has been allowed so undo the finality of the conviction as to make the appellate decision applicable in the disposition of that appeal? In some circumstances the answer to this question is 'yes,' and an appellate court will review an appeal Nunc pro tunc just as it would a direct appeal. Thus in Commonwealth v. Linde, 448 Pa. 230, 293 A.2d 62 (1972), the question was whether the defendant was entitled to the benefit of the rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The defendant had been convicted on September 6, 1958. On November 10, 1971, the Supreme Court 'permitted an appeal to be filed as if timely . . ..' Commonwealth v. Linde, Supra, 448 Pa. at 231 n. 1, 293 A.2d at 63 n. 1. In deciding that appeal the Court applied the Mapp rule, citing Linkletter v. Walker, Supra, for the proposition that 'the Mapp ruling (is) applicable to any judgment not finalized,' and holding that '(s)ince an appeal nunc pro tunc is a direct attack on the judgment of sentence, (the defendant) gets the benefit of the Mapp ruling and its progeny.' Commonwealth v. Linde, Supra at 232 n. 2, 293 A.2d at 63 n. 2. And in Commonwealth v. Heard, 451 Pa. 125, 301 A.2d 870 (1973), the same decision was reached. [1]
It will be observed that the present case falls within the third of these three situations. As was noted above, appellant was tried on May 13, 1971. Motions in arrest of judgment or for new trial were filed, argued, and denied. An appeal was filed but evidently not perfected. On December 4, 1972, Judge Doty held a post conviction hearing, and on January 2, 1973, he entered an order allowing an appeal Nunc pro tunc. It is that appeal that is now before us. During its pendency the appellate decision on which appellant relies, Commonwealth v Williams, Supra, was filed. This might suggest that appellant's contention that we should apply Williams is justified. In fact the contention is fallacious, but it is important to understand why it is, not only as regards this case but also as regards Commonwealth v. Lockhart, Supra. ...
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