September 30, 1963
Appeal, No. 142, Oct. T., 1963, from order of Court of Quarter Sessions of Philadelphia County, March T., 1960, Nos. 1869, 1870, 1871 and 1872, in case of Commonwealth of Pennsylvania v. Joseph J. Nardello. Order vacated.
Joseph M. Smith, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Benjamin R. Donolow, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 202 Pa. Super. Page 13]
OPINION BY FLOOD, J.
The defendant was convicted of pool selling and bookmaking by the court below sitting without a jury. He appealed to this court which, on January 16, 1962, affirmed the convictions and directed that he "appear in the court below at such time as the may there be called, and that he be by that court committed until he has complied with the sentences or any part of them which had not been performed at the time the appeals were made a supersedeas." Commonwealth v. Nardello, 197 Pa. Superior Ct. 165, 177 A.2d 166 (1962).
[ 202 Pa. Super. Page 14]
The court below did not observe this mandate. Instead, on November 8, 1962, it granted a new trial upon the defendant's request to withdraw his jury waiver. He had waived a jury at his trial upon advice of counsel then representing him, whose competency is not challenged.The Commonwealth has appealed from the order granting a new trial.
No question of the fairness of defendant's trial was raised and there was no indication in the petition for a new trial that he was prejudiced by the waiver. He merely stated in his petition to withdraw the waiver that he was not aware and not informed of his right to a jury trial. Since at the time of the waiver he was represented by competent counsel, it must be presumed that he acted knowingly and advisedly. The averments of the defendant's petition raise no constitutional question and no other issue which was not determined by our disposition of his appeal. The action of the court below would nullify that disposition. This is beyond that court's power. Its order is void and must be vacated.
The appellee's motion to quash the Commonwealth's appeal as interlocutory is without merit. The order appealed from is not interlocutory but purports to modify our final disposition of the case.
The order of the court below granting a new trial is vacated and defendant is directed to appear forthwith in that court which is directed to commit him until he has complied with the sentences or any part of them which had not been performed at the time the appeals to this court from his convictions were made a supersedeas.
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