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COMMONWEALTH v. GRANT (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
GRANT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, Nos. 1601 and 1602, in case of Commonwealth of Pennsylvania v. Michael Grant.

COUNSEL

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

John H. Isom, Assistant District Attorney, with him David Richman, Mark Sendrow, and Steven H. Goldblatt, 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.

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

Author: Spaeth

[ 235 Pa. Super. Page 360]

Appellant, Michael Grant, was tried before a judge sitting without a jury on September 6, 1973, and was found guilty of receiving stolen goods and operating a motor vehicle without the owner's consent. Post-trial motions in arrest of judgment and for a new trial were denied, and appellant was sentenced to concurrent terms of one and a half to three years in prison. Appellant now contends: that the record is inadequate to establish that he knowingly and voluntarily waived his right to a jury trial; that the evidence is insufficient to support his convictions; and that the court erred in imposing sentence on both indictments since the charges relate to the same act.

On April 30, 1973, a yellow Thunderbird belonging to Harvey Douglas, a Philadelphia police officer, was stolen from a repair shop. The theft was reported to the police, and the car's description and license plate number were put on the police "hot sheet." On May 17, 1973, a police officer observed appellant driving the car. He checked the hot sheet, found that the car was stolen, and

[ 235 Pa. Super. Page 361]

    indicated to appellant to pull over. Appellant made no attempt to flee, but did as the officer requested. There were two passengers in the car, Joseph Robinson and Mary Rayford. The officer asked appellant for his driver's license and owner's card. Appellant produced a valid license, but he did not have the owner's card. According to the police officer, appellant explained that he did not have the owner's card because "the car belonged to a friend of his where he was going to get the owner's card." However, the officer said, appellant "did know the man's name and he did not know the [man's] address."

Appellant testified on his own behalf and denied knowing the car was stolen. He stated that Robinson had borrowed the car from a man named Jay or James at a bar down the street. Appellant had known James for about three years, and had seen him drive the car several times, but he did not know his last name. Robinson's purpose was to drive Rayford home. However, he was too intoxicated to drive, so appellant took the wheel. He had only been driving for three to five minutes when the officer stopped him. Rayford also testified, and generally corroborated appellant's testimony. The prosecution did not offer any rebuttal.

Appellant first contends that the record is inadequate to establish that he knowingly and voluntarily waived his right to a jury trial. Defense counsel conducted the colloquy, but he failed to inform appellant that if he asked for a jury, the jury would be chosen from members of the community, and he would be allowed to participate in their selection. In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), our Supreme Court held that for a jury waiver to be constitutionally acceptable the record must demonstrate that the accused "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

[ 235 Pa. Super. Page 362]

    members of the community, that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel." Id. at 373, 312 A.2d at 600. It is therefore evident that the colloquy in the ...


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