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COMMONWEALTH PENNSYLVANIA v. GEORGE W. BROWN (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE W. BROWN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Dauphin County, at Numbers 644, 645, and 646 Criminal Division, 1974. NO. 44 MARCH TERM, 1976.

COUNSEL

Steven Foldes, Harrisburg, for appellant.

Marion E. MacIntyre, 2nd Asst. Dist. Atty., Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 242 Pa. Super. Page 242]

On September 16, 1974, appellant George Walter Brown pleaded guilty to three charges of robbery. The lower court accepted the guilty pleas and sentenced appellant to pay costs and seventy-five dollars in fines, to make restitution in the amount of one hundred dollars, and to serve three concurrent terms of five to fifteen years imprisonment. No direct appeal was taken; however, appellant filed a petition on December 10, 1974 under the Post Conviction Hearing Act,*fn1 alleging that he had been denied the right to representation by competent counsel, that his guilty pleas had been unlawfully induced, and that a right guaranteed him by the Constitution or laws of this state had been abridged. The lower court, by Order dated January 8, 1975, denied appellant's petition without a hearing. Appellant then took this appeal to our Court, alleging that he had been ineffectively represented by counsel in that no appeal had been taken to challenge (1) the effectiveness of his waiver of the right to trial by jury, (2) the validity of his guilty plea. The matter is properly framed for disposition under the Post Conviction Hearing Act; the question which we must answer is

[ 242 Pa. Super. Page 243]

    whether the lower court properly denied appellant a hearing on his petition.

Appellant argues that he did not knowingly and voluntarily waive his constitutional right to a jury trial; specifically, he alleges that he was not advised that he had a right to participate in selecting a jury of his peers, and that the lower court did not obtain from him the written waiver required by Rule 1101 of the Pennsylvania Rules of Criminal Procedure. The transcript of the guilty plea colloquy clearly reveals that appellant was properly advised of his rights:

"Q. Do you understand that if you plead not guilty you would have a right to a jury trial, wherein twelve individuals from the community of Dauphin County would be selected, they would listen to the evidence the Commonwealth presents, they would listen to any evidence you would wish to present in your own defense, and they would determine your innocence or guilt, do you understand that?

"A. Yes.

"Q. Do you understand that if you elected to have a trial by jury you could assist your attorney, Mr. Zerbe, in selecting which 12 jurors from a panel of prospective jurors would be selected to listen to the case, and they would determine your innocence or guilt, do you understand that?

"A. Yes, sir.

"Q. Do you understand that before a jury could find you guilty, all 12 jurors must unanimously agree that you are in fact guilty, do you understand that?

"A. Yes."

In addition to erroneously stating that he had not been advised of his jury trial rights, appellant mistakenly relies on Rule 1101. Rule 1101 states:

"In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval

[ 242 Pa. Super. Page 244]

    by a judge of the court in which the case is pending, and elect to be tried by a ...


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