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COMMONWEALTH v. WILLIAMS (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
WILLIAMS, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1971, Nos. 773 to 776, inclusive, in case of Commonwealth of Pennsylvania v. Robert Williams.

COUNSEL

Richard Bank and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Jacobs, J., concurs in the result.

Author: Spaeth

[ 232 Pa. Super. Page 342]

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 "knew the essential ingredients of a jury trial which are necessary to understand the significance of the right he was waiving. These essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one's peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel. In Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938), these rights were held to be a necessary and integral part of the Pennsylvania Constitutional provision requiring that "the 'trial by jury shall be as heretofore, and the right thereof remain inviolate,' Pa. Const. art. I, § 6, P.S. [Footnote omitted.]" 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. Superior Ct. 503, 322 A.2d 707 (1974), we held that the rule in

[ 232 Pa. Super. Page 343]

    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, at 622 n.5; 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) (sentence on December 1, 1971; appeal taken; in deciding appeal, Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417, filed April 20, 1972, applied). 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 (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, 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

[ 232 Pa. Super. Page 345]

    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, ...


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