Appeal from order of Superior Court, Oct. T., 1971, No. 1532, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1971, No. 380, in case of Commonwealth of Pennsylvania v. Leon Stokes.
Anne Johnson, Assistant Defender, with her, Francis S. Wright, Jr., Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Maxine J. Stotland, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones dissents.
Appellant, while represented by counsel, waived a jury trial and was found guilty of two counts each of
aggravated robbery and aggravated assault and battery. He was sentenced to a term of imprisonment, and an appeal to the Superior Court resulted in a remand for the filing of post-trial motions. Those motions were filed, argued and dismissed by the trial court, which then reimposed the original sentence. A second appeal to the Superior Court resulted in an affirmance of the judgment of sentence, Commonwealth v. Stokes, 221 Pa. Superior Ct. 721, 288 A.2d 543 (1972), and we allowed an appeal.
Only one question is raised on appeal, appellant contending that his waiver of a trial by jury was not knowing and voluntary. Rule 1101, Pa. R. Crim. P., requires an on-the-record colloquy in jury trial waiver situations, and also requires the trial judge to "ascertain from the defendant whether this is a knowing and intelligent waiver."
The record in this case contains a long colloquy in which the trial court attempted to satisfy itself that appellant's waiver was knowing and intelligent. That colloquy, in its entirety, is as follows: "By Mr. Deutsch (defense counsel): Q. Mr. Stokes, you have an absolute right to have a jury trial. A jury trial would consist of twelve individuals who would decide your guilt or innocence. All twelve of them would have to agree to your guilt beyond a reasonable doubt before you could be convicted. Do you understand that? By the Defendant: A. Yes. Q. You also have the right to be tried in front of his Honor, the judge sitting, without a jury and have his Honor decide the facts and the law of the case as well as your guilt or innocence. Do you understand that? A. (indicating yes) Q. Is it your decision to be tried in front of his Honor sitting without a jury? Do you want to have the judge hear the case without a jury? A. No. I really don't know what you are talking about. I don't know nothing. By the Court: Q. How far did you go in school,
Mr. Stokes? A. Seventh grade. Q. What is that? A. Seventh grade. Q. Under the Constitution of this country, every man has a right to a trial by jury meaning that twelve men of the community that you live, in Philadelphia, would have a right to pass upon your innocence or your guilt. A. Yes. Q. They would have to be unanimous as to whether you are guilty or innocent. If one man found you were not guilty, then you could not be convicted. Now, you may, by the same token, waive that right to have twelve men decide whether you're guilty or not and you can have the judge do that, both as a jury and as a judge, applying the law to the facts as he sees them. Now, in order to do that, you must voluntarily waive your right to be tried by a jury. Do you understand me at this point? A. Yes. Q. Now, the decision is up to you whether or not you are waiving your right to be tried by a jury. A. I'd rather be tried by the judge. I don't want to get tried by the twelve people. Q. You don't want to be tried by twelve men and women; is that what I heard you say? A. Yes. By Mr. Deutsch: Q. Mr. Stokes, do I understand you correctly in saying that you wish to be tried by the judge alone, without a jury, without the twelve men and women? A. Yes, yes. Q. Is that your own decision? A. Yes. Q. Has anybody made any promises or threats at all to get you to make this decision? A. No, sir. Q. All right, sir. How old are you? A. Twenty. Q. How far did you go in school? A. Seventh grade. Q. Do you read and write the English language? A. Yes. Q. Have ...