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decided: June 24, 1975.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, No. 625, in case of Commonwealth of Pennsylvania v. James Carey.


Barnett S. Lotstein, with him Seidman and Lotstein, for appellant.

Mark Sendrow, Assistant District Attorney, with him Larry D. Feldman 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., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Cercone, J., dissents. Dissenting Opinion by Van der Voort, J. Watkins, P. J., joins in this dissenting opinion.

Author: Spaeth

[ 235 Pa. Super. Page 369]

Appellant contends that he did not voluntarily waive his right to a jury trial, and that he is therefore entitled to a new trial.

Appellant and a co-defendant were charged with burglary with intent to commit a felony, unlawfully resisting arrest, and assault and battery. The assistant district attorney agreed with appellant's counsel that he would recommend probation if appellant would plead guilty, and appellant on the advice of counsel accepted this plea bargain. However, when on September 4, 1969, appellant appeared for trial before Judge DiBona, this bargain was rejected (the record is at odds whether this rejection was by the judge or the assistant district attorney), and the case was listed for trial before Judge (now Mr. Justice) Nix. On October 1, 1969, a pre-trial conference was held between Judge Nix, the assistant district attorney, appellant's counsel, and counsel for the co-defendant. During the conference, the judge was told about the failure of the previously arranged guilty plea. There was also some discussion of the facts of the case, and of appellant's prior record (that he had "done time"). Following the conference, appellant's counsel advised appellant that if he waived a jury trial, he would, if convicted, receive a sentence of no more than 6 to 23 months. (The facts regarding this advice will be more fully discussed below.) An on-the-record colloquy ensued between counsel and appellant, after which appellant waived a jury trial. He was found not guilty of unlawfully resisting arrest and assault and battery, but guilty of burglary with intent to commit a felony. The assistant district attorney recommended a sentence of 6 to 23 months.

[ 235 Pa. Super. Page 370]

However, Judge Nix refused the recommendation and sentenced appellant to 5 to 10 years. Appellant did not appeal this sentence but did file a petition under the Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965) 1580, 19 P.S. ยง 1180-1 (1974-75). A hearing was held and appellant was given leave to file post-trial motions nunc pro tunc. These motions were filed and denied, and this appeal followed.

Although the right to a jury trial in criminal cases is guaranteed both by the Sixth Amendment to the United States Constitution and by Article I, Section 9 of the Pennsylvania Constitution, it may nevertheless be voluntarily waived. Commonwealth v. Kirkland, 413 Pa. 48, 53, 195 A.2d 338, 340 (1963). However, in order for the waiver to be voluntary, it must be "an intentional relinquishment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Commonwealth v. Garrett, 439 Pa. 58, 266 A.2d 82 (1970). For this standard to be met, a defendant must understand the nature and consequences of his waiver. Commonwealth v. Wright, 444 Pa. 588, 589, 282 A.2d 266, 267 (1971).

Thus it will be observed that the concept of "voluntary waiver" comprises two facts: understanding and will. Unless both of these facts are proved, there can be no finding of voluntary waiver. Understanding alone is not enough, for one may understand what he is doing but do it only in response to a threat. Neither, however, is will alone enough. One can willingly agree to waive a right, in the sense of acting freely and not in response to any threat, but if he does not understand the nature of the right he is waiving, and the consequences of waiving it, his waiver cannot be a "voluntary waiver." Eisen v. Picard, 452 F.2d 860 (1st Cir. 1971), cert. denied 406 U.S. 950 (1972) (defendant freely confessed; confession nevertheless excluded because at time of giving it defendant was mentally ill). This explains such cases as those requiring that a defendant be told that a jury consists of

[ 235 Pa. Super. Page 371]

    twelve persons, whose verdict must be unanimous and in whose selection he may participate; otherwise he does not understand what a "jury" is. Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

In a case such as the present case, which involves the effect on a defendant of his counsel's advice, it is important to keep the two facts of understanding and will distinct. This is so because one kind of advice must be given before a defendant can understand the nature of the right in question, and another kind before he can willingly give up that right. In the first instance, the advice will be general: e.g., a statement explaining what a jury is. In the second instance, it will be particular, and will involve counsel's prediction in the case at hand with respect to such matters as the likelihood of a guilty verdict and the probable sentence.

Here, appellant does not contend that counsel did not advise him of, or that for some other reason he did not understand the nature of, his right to a jury trial. Rather, his contention is that instead of waiving that right willingly, he waived it only because his counsel assured him that if he did waive it, his sentence would be no more than 6 to 23 months.

In considering this contention, it must first be acknowledged that the opinion of the lower court does not respond to it. Thus the court states:

"We find as a fact that no promises had been made by the district attorney or the court to defendant or his counsel that defendant would receive any particular sentence in return for a waiver of a jury trial. We, therefore, hold that defendant's waiver was knowingly, ...

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