Allen N. Brunwasser, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., filed a dissenting opinion. Eagen, C. J., dissents. Packel, former J., did not participate in the decision of this case.
On June 25, 1974, appellant, Frank Morin, was convicted of theft by deception after a non-jury trial in the Court of Common Pleas of Allegheny County. Post-verdict motions were filed on June 28, 1974, and denied on October 11, 1974. Appellant was sentenced to three and one-half to seven years imprisonment. On appeal, the Superior Court affirmed. Commonwealth v. Morin, 237 Pa. Super. 533, 352 A.2d 189 (1975). We granted appellant's petition for allowance of appeal, and this appeal followed. For the reasons that follow, we reverse the judgment of sentence and grant a new trial.
Appellant was represented by the same counsel at trial and on appeal to the Superior Court. Represented by new counsel for the first time on this appeal, appellant contends that he was denied effective assistance of counsel because his previous counsel failed to raise, either in post-verdict motions or in the appeal to the Superior Court, the issue of whether appellant knowingly and intelligently waived his right to a jury trial. We agree.
The prosecution initially argues that the issue of ineffective waiver of trial by jury is not properly reviewable by this Court because appellant's brief did not present the colloquy issue in terms of ineffective assistance of counsel. We reject this argument. When appellant's brief first challenged the on-the-record colloquy, it specifically incorporated into that argument the ineffectiveness-of-counsel argument which was fully argued in a subsequent portion of the brief.
We are satisfied that appellant's challenge to the waiver colloquy, which first points out the deficiencies in the colloquy and then argues it was ineffectiveness not to raise those deficiencies in post-verdict motions or on appeal, is properly preserved for our review at this time.
It is true, as argued by the prosecution, that counsel may not be deemed ineffective for pursuing a course born of reasonable, calculated strategy, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), and that when it cannot be determined from the record whether counsel acted pursuant to such a reasoned course, the proper remedy is to remand the record for an evidentiary hearing on the issue. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). We may find that trial counsel's stewardship did not meet the standards required by the Constitution without the benefit of such a hearing, however, when it can be said from an examination of the record on appeal that no reasonable basis for counsel's decision could exist. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). This is such a case: Our examination of the record here leads us to conclude that under no circumstances can it be said that previous counsel's failure to raise this issue resulted from any reasonable strategy designed to effectuate his client's interests. See Commonwealth v. Twiggs, supra, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. 599, 235 A.2d 349 (1967).
The waiver of a jury trial is a personal right of the accused. The prosecution has the burden of affirmatively establishing waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Rule 1101 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, provides that a defendant may waive the right to a jury trial. Such a waiver is to be approved by the court. Before it may be said that defendant has knowingly and intelligently waived the right to a jury trial, the on-the-record colloquy
must show that the defendant fully comprehended the significance of the right being waived. Rule of Criminal Procedure 1101 provides:
"In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record." (Emphasis added.)
The colloquy must indicate, at a minimum, that the defendant knew the essential protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards. Among the "essential ingredients of a jury trial," an understanding of which the accused must possess before a knowing and intelligent jury trial waiver can be made, are the requirements that the jury be composed of one's peers chosen from members of the accused's community, that the accused has the right to participate in the selection of the jury, and that every member of that jury must be convinced, beyond a reasonable doubt, of the accused's guilt. Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973).
The colloquy in the instant case is as follows:
"Q. [By defense counsel] Mr. Morin, I have explained to you that you have a right to trial ...