Opinion
March 18, 1974.
June 21, 1974.
Criminal Law — Waiver of jury trial — Intelligent and voluntary waiver — Burden of proof — Colloquy — Commonwealth v. Williams, 454 Pa. 368 (1973).
1. In this case, where defendant waived a jury trial, he was apprised of his right to a jury trial, comprised of 12 men and women who could find him guilty only if they were convinced that guilt had been established beyond a reasonable doubt.
2. It was Held that defendant's contention that in light of Commonwealth v. Williams, 454 Pa. 368 (1973), that the absence of an on-the-record inquiry into his understanding that the jury's verdict had to be unanimous required that the case be remanded for an evidentiary hearing, was without merit.
3. In cases tried prior to the decision of Commonwealth v. Williams, if the defendant wishes to prove that his waiver was unintelligent and involuntary, he must do so in a collateral proceeding.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1144, Oct. T., 1973, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 1307, in case of Commonwealth of Pennsylvania v. Walter Dublin. Judgment of sentence affirmed.
Indictment charging defendant with aggravated robbery. Before MARSHALL, J., without a jury.
Finding of guilty and judgment of sentence entered thereon. Defendant appealed.
John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
James T. Ranney and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Submitted March 18, 1974.
Appellant was charged with aggravated robbery, and waived his right to a jury trial after an extensive colloquy. He was found guilty of said charge by the Hononable MERNA B. MARSHALL, Judge of the Common Pleas Court of Philadelphia County, sitting without a jury. Appellant's only contention is that the record does not establish that his waiver was the result of an understanding of his right to a jury trial.
The pertinent portion of the record set forth in appellant's brief indicates that appellant was apprised of his right to a jury trial, comprised of twelve men and women who could find him guilty only if they were convinced that guilt had been established beyond a reasonable doubt. Appellant submits that, in light of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), the absence of an on-the-record inquiry into appellant's understanding that the jury's verdict had to be unanimous requires this Court to remand the case for an evidentiary hearing.
We disagree. The instant case was tried prior to the decision in Williams, and if appellant wishes to prove that his waiver was unintelligent and involuntary, he must do so in collateral proceeding. Furthermore, for the reasons set forth in our opinion in Commonwealth v. Lockhart, 227 Pa. Super. 503, 322 A.2d 707 (1974), filed this same date, we should not apply the rule enunciated in Williams to the instant case.
Judgment of sentence is affirmed.