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COMMONWEALTH PENNSYLVANIA v. LEONARD GEORGE TOLBERT (02/18/77)

decided: February 18, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
LEONARD GEORGE TOLBERT, APPELLANT



Appeal from the Judgment of Sentence imposed April 30, 1975, of the Court of Common Pleas of Montgomery County, Criminal, at No. 3181 July Term, 1974. No. 1344 October Term, 1975.

COUNSEL

David S. Winston, Philadelphia, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., files a dissenting opinion in which Van der Voort, J., joins.

Author: Price

[ 246 Pa. Super. Page 24]

On August 23, 1974, Maria De Naro was assaulted as she walked along a pathway in Penn Valley, Montgomery

[ 246 Pa. Super. Page 25]

County. As a result of a description given by Maria to the police, appellant was arrested. Maria identified appellant as her assailant and appellant was subsequently indicted for simple assault*fn1 and indecent assault.*fn2 On April 30, 1975, appellant was found guilty of both counts by a jury. Because appellant was denied the right to be present during the selection of the jury, we must reverse the judgment of sentence of the lower court and grant appellant a new trial.

Appellant's trial was originally scheduled to begin on April 29, 1975. The court was convened sometime during the afternoon of that date, and, at that time, appellant's trial counsel informed the judge that the trial could not proceed because appellant was not present. It is apparent from the record, and uncontested by the Commonwealth,*fn3 that a person in the district attorney's office had that very morning misinformed trial counsel that the district attorney's office could not try the case on April 29. Therefore, counsel instructed appellant not to appear on that date, but to appear the following morning. Counsel explained this confusion and promised appellant's appearance the following morning.

The trial judge was understandably irritated at the turn of events. As a gesture of appeasement, counsel offered to proceed with the jury selection despite appellant's absence. This offer was accepted and a jury was selected at that time. On appeal, appellant contends that trial counsel's decision to waive his presence during the selection of the jury was ineffective assistance of counsel, necessitating a new trial.*fn4

[ 246 Pa. Super. Page 26]

In Commonwealth v. Graves, 238 Pa. Super. 452, 356 A.2d 813 (1976), this court was confronted with essentially the same issue. We reversed the defendant's conviction and granted a new trial, holding that "counsel's decision to select two jurors without the presence of his client cannot have any basis in reasonable trial strategy." 238 Pa. Super. at 455, 356 A.2d at 814.

The right of a defendant to be present during the selection of the jury, along with his right to be present during every other phase of the trial, is protected by Pa.R.Crim.P. 1117(a). Unless the defendant is absent without cause, the right is absolute. Cf. Commonwealth v. Felton, 224 Pa. Super. 398, 307 A.2d 51 (1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974). The right of the accused to participate in the selection of the jury panel is an essential ...


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