No. 220 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at CC7608490A
G. William Bills, Jr., Pittsburgh, Court-appointed, 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 Larsen, JJ. Pomeroy, J., did not participate in the consideration or decision of this case. Nix, J., concurs in the result. Roberts, J., filed a dissenting opinion in which Manderino, J., joined. Manderino, J., filed a dissenting opinion in which Roberts, J., joined.
Charles T. Hooks, appellant, was convicted of murder of the third degree following a non-jury trial in Allegheny County. Post-verdict motions were filed by counsel from the public defender's office. Because the motions alleged,
inter alia, ineffectiveness of trial counsel who was also from the public defender's office, the court appointed new counsel not associated with this office to represent Hooks, conducted a hearing, and heard evidence relevant to the issues, including ineffectiveness of trial counsel. Subsequently, the post-verdict motions were denied and judgment of sentence was imposed. This appeal followed.
Appellant argues he did not effectively waive his right to a trial by jury because the colloquy included ". . . several vacillations . . . show[ing his] confusion and lack of understanding" and because he had a limited ability to understand the colloquy proceeding due to a "limited educational background and history of alcoholism," which had caused brain damage. The argument constitutes both a facial attack on the colloquy as not evidencing an effective waiver, and an attack on the waiver as being ineffective for reasons outside the colloquy record as evidenced by testimony presented during the hearing on post-verdict motions. Cf. Commonwealth v. Dyson, 249 Pa. Super. 503, 378 A.2d 408 (1977).
In support of his facial attack argument, appellant relies on Commonwealth v. Stokes, 450 Pa. 167, 299 A.2d 272 (1973), and Commonwealth v. Hooks, 450 Pa. 562, 301 A.2d 827 (1973).*fn1
In Commonwealth v. Stokes, supra, we held the colloquy was inadequate to establish an effective, i. e. knowing and intelligent, waiver of the right to jury trial because the record indicated: (1) a lack of understanding by a defendant who was a product of a school for slow learners and who had never before been involved in criminal proceedings; and, (2) vacillation by the defendant during the course of the colloquy. Specifically, in Commonwealth v. Stokes, supra, the record showed the following: (1) a defendant, who during the colloquy, told defense counsel, who was explaining what the waiver of a jury trial entailed, that he did not know what defense counsel was talking about; (2) a defendant with a seventh grade education who was "immature" at
twenty years of age; (3) a defendant, who told the court, after an off-the-record explanation of the right to trial by jury given by counsel, that he would rather be tried by a jury and, almost immediately thereafter, said he would take counsel's advice to be tried without a jury; and, (4) a defendant who eventually assented to waive a jury trial only after the above occurred and then in response to leading questions.
In Commonwealth v. Hooks, supra, we held the record failed to establish an effective, i. e. knowing and intelligent, waiver of the right to a jury trial where the defendant, after evidencing an understanding of his right and desire to waive it in response to questions by his counsel, responded to a question by the court by saying he did not "really understand some of the things," and that "[s]ome of the things [were] still not clear to [him.]" We reasoned that, since "some of the things" which were unclear may have included his right to a trial by jury, the record was inadequate to establish an effective waiver.
Clearly, the facts instantly are markedly different from those in Commonwealth v. Stokes, supra, and Commonwealth v. Hooks, supra. Here the accused was sixty-one years of age at the time of the colloquy. He had an eleventh grade education and could read and write.
It is true that the appellant here, at the beginning of the colloquy in response to a question by the court as to whether he understood what a jury trial was, did indicate he did not ". . . know anything too much about a jury or non-jury, because [he had] never been in court but once," but thereafter, the court explained that guilt could be determined either by a jury or the judge; that both the federal and state constitutions guaranteed him a right to a jury trial; that the jury would consist of twelve persons selected by him along with his attorney and the prosecutor; that he had a right to challenge prospective jurors for cause and what a challenge for cause meant; that he would be allowed a certain number of peremptory challenges and the meaning of this; that the twelve jurors would be selected from a jury panel which had
been selected by the jury commissioners;*fn2 that a determination of guilt by a jury would have to be unanimous; and, that all twelve members of the jury would have to be satisfied the Commonwealth proved guilt beyond a reasonable doubt. Throughout this explanation, appellant unequivocably indicated he understood. The court then asked: "All right, sir, and knowing all this, do you wish to waive your right to a jury trial?" The following then occurred:
"[Appellant:] No, I don't want a jury.
"The Court: You don't want a jury. Well, that's what waive means, sir. You want to be tried by a Judge?
"The Court: Has anybody coerced you or forced you or tried to make you do this? Has anybody talked you into this, to waive your right to a jury ...