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COMMONWEALTH v. GARRETT (05/27/70)

decided: May 27, 1970.

COMMONWEALTH
v.
GARRETT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Chester County, May T., 1966, No. 99, in case of Commonwealth v. John Edward Garrett.

COUNSEL

John J. Duffy, for appellant.

A. Thomas Parke, III, Assistant District Attorney, and Norman J. Pine, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 439 Pa. Page 59]

John Edward Garrett, Jr. was arraigned upon a bill of indictment for the crime of murder, to which he entered a plea of not guilty by reason of insanity. On February 27, 1967, when the case was called for trial, defendant, while represented by a Court-appointed counsel, withdrew his plea of not guilty and entered (on the bill) an endorsed plea of guilty to the crime of voluntary manslaughter. Defendant was sentenced to pay a fine and costs, and to undergo imprisonment of not less than four years nor more than twelve years. No appeal was taken from the Judgment of Sentence.

Appellant sought relief under the Post Conviction Hearing Act, and after an evidentiary hearing held on March 4, 1969, he was granted the right to appeal, as though timely filed. The sole issue before the Court on this appeal is whether appellant knowingly and understandingly waived his Constitutional right to trial by jury.

It is well settled that the right to a trial by jury is absolute, but may be waived, Commonwealth v. Kirkland, 413 Pa. 48, 53, 195 A.2d 338; Commonwealth ex rel. Madison v. Rundle, 429 Pa. 13, 16, 239 A.2d 391. However, the waiver of this fundamental Constitutional right must be shown to have been "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464; Commonwealth v. Freeman, 438 Pa. 1, 263 A.2d 403; Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760; Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 218, 220 A.2d 883, or, as sometimes expressed, there must be a knowing, intelligent and understanding waiver of his

[ 439 Pa. Page 60]

    known Constitutional right. Brady v. United States, 397 U.S. 742 (1970); Boykin v. Alabama, 395 U.S. 238; McCarthy v. United States, 394 U.S. 459.

Appellant argues that he could not have made a knowing and understanding waiver of his Constitutional right to trial by jury because his Court-appointed counsel failed to inform him of the possibility of "getting off scot-free," if the trial jury returned an unqualified verdict of "not guilty." He further contends that he waived his right to a jury trial because he was under the misapprehension that even if he was found not guilty at his trial, he would be committed to a mental institution for an indefinite period of time. The testimony of both appellant and his trial defense counsel at the P.C.H.A. hearing fails to support appellant's contentions.

Appellant's pertinent testimony at the P.C.H.A. hearing was as follows: "Q. Well, he [defense counsel] didn't tell you your chances were very good of getting off scot-free, did he, getting an acquittal? A. He said there was a possibility of it. . . . Q. And you also knew that Mr. Aglow [defense counsel] said you might be ...


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