No. 149 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at Nos. 310, 310(a) Criminal Division 1976.
Daniel R. McGarry and Frederic G. Antoun, Jr., Assistant Public Defenders, Harrisburg, for appellant.
LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Cercone, J., files a dissenting opinion. Spaeth, J., files a dissenting opinion, in which Hoffman, J., joins.
[ 252 Pa. Super. Page 279]
This appeal arises from the lower court's refusal to permit appellant to withdraw his guilty plea. Appellant correctly states that he was not informed of his right to trial by jury and the presumption of innocence in his favor at the time he entered the plea. Admitting these facts, the Commonwealth nevertheless contends that the guilty plea colloquy was sufficient in light of the fact that appellant was apprised of these rights at formal arraignment. For the reasons that follow, we affirm the order of the lower court.
[ 252 Pa. Super. Page 280]
Appellant was arrested January 12, 1976, and charged with burglary*fn1 and resisting arrest.*fn2 On April 1, 1976, he was arraigned in open court and elected to plead not guilty to the charges. At the same time, appellant's counsel informed the court that appellant did not want a jury trial, whereupon the Deputy District Attorney and Judge LIPSITT informed appellant in question-and-answer fashion of his jury trial rights and the presumption of innocence in his favor.
On April 29, 1976, the date set for trial, appellant expressed his desire to plead guilty to both charges. A guilty plea colloquy conducted chiefly by the Deputy District Attorney ensued, and the court accepted the plea. Following testimony by the arresting officer and the victim of the burglary,*fn3 the court sentenced appellant to pay costs and restitution, and four to fifteen years imprisonment on the burglary, and costs and one to two years imprisonment for resisting arrest, with sentences to run consecutively.
Appellant thereupon took a pro se appeal to this Court, and was directed to file briefs. Pursuant to his petition to remand to Dauphin County Court, we remanded the case on August 5, 1976 to consider appellant's petition to withdraw his guilty plea nunc pro tunc. When the court below denied appellant permission to withdraw his guilty plea on October 12, 1976,*fn4 this appeal followed.
The Comments to Pa.R.Crim.P. 319 recommend that the judge who hears the plea ask questions covering six basic areas, which include the right to trial by jury and the presumption of innocence. In Commonwealth v. Dilbeck,
[ 252 Pa. Super. Page 281466]
Pa. 543, 353 A.2d 824 (1976), our Supreme Court reviewed these six areas, and held that the above six questions are mandatory during a guilty plea colloquy, and ". . . [f]ailure to satisfy these minimal requirements will result in reversal." 466 Pa. at 547, 353 A.2d at 827. Under the facts of the present case, however, we are not persuaded that the court's failure to inform appellant during the colloquy of his specific right to a jury trial invalidates the plea. When appellant, represented by counsel, waived his right to jury trial at arraignment, 28 days prior to his guilty plea, that right and its attendant safeguards were explained to him in detail.
"THE COURT: All right. Well, we better notify him of his rights then.
"Q. Mr. Moore, you know that you have a right to a trial by jury, and it's an absolute right?
"Q. A jury is chosen from members of the community, and in this situation they would be chosen from the County of Dauphin and chosen at random, do you understand that?"
"Q. Do you know that a jury trial verdict must be unanimous, all of the members of the jury must agree to a verdict of guilty before you could be held guilty?
"Q. If they are not unanimous why, then, of course, there is a hung jury, and the jury cannot find you guilty, you ...