John J. Dean, Donna Jo McDaniel, Anthony J. Lalama, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Price, J., files a dissenting opinion in which Van der Voort, J., concurs in the result.
[ 244 Pa. Super. Page 27]
This is a direct appeal from a judgment of sentence of the Court of Common Pleas of Allegheny County, Criminal Division, following a conviction of theft, forgery, uttering forged instruments, and possession of a controlled substance. Post-trial motions were timely filed and denied.
Appellant contends that his waiver of jury trial was invalid. The record indicates that an extensive colloquy was conducted, with the court and defense counsel (a public defender handling the case as private counsel) alternating the questioning. Counsel asked what would
[ 244 Pa. Super. Page 28]
have been, except for the response, a concluding question:
"And notwithstanding what Judge Fiok and I have said, you are waiving your right to trial by jury?"
"Maybe I shouldn't, maybe I should take a jury. I'd like to have a jury trial."
Counsel reminded appellant that he could not represent him in a jury trial as he was taking the case as private counsel. (Public Defenders in Allegheny County are restricted, as a matter of office policy, to guilty pleas and non-jury trials in their private criminal practice.) Appellant reiterated that he wanted a jury. The court ordered that a jury be selected. A brief consultation between appellant and counsel apparently followed, whereupon a further exchange took place:
"Mr. Swem: Your Honor, Mr. Miller has something he'd like to say.
The Court: No, there's nothing to discuss at this time. He made his selection, that's it.
Mr. Swem: He said he'd like to go non-jury now.
Mr. Miller: I have no money for another attorney. Mr. Swem said he can't represent me if I go to a jury trial, and that means I'll be without ...