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COMMONWEALTH PENNSYLVANIA v. KEVIN ALAN FRIEDMAN (07/27/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 27, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN ALAN FRIEDMAN, APPELLANT

No. 2247 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, No. 4240-77.

COUNSEL

Gary Kleitman, Norristown, for appellant.

Terri Marinari, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Hoffman

[ 268 Pa. Super. Page 279]

Appellant contends, inter alia,*fn1 that he should have a new trial because he was not informed during a waiver colloquy that he had a right to a trial by a jury chosen from members of his community. We agree and, accordingly, remand for a new trial.

[ 268 Pa. Super. Page 280]

On October 27, 1977, Cheltenham Township police arrested appellant and charged him with violating various provisions of the Pennsylvania Motor Vehicle Code.*fn2 The charges stemmed from a hit-and-run automobile accident in which a pedestrian was injured. On March 8, 1978, the following colloquy occurred:

"BY MR. McBRIEN [Defense Counsel]:

"Q. Kevin, you are still under oath from yesterday. Do you understand that you have the right to have a panel of jurors brought into this room to participate with me in the selection of the 12 jurors that would sit in deliberation of this case? Do you understand you have that right?

"A. Yes.

"Q. Do you understand that by electing to be tried by Judge Vogel sitting without a jury that you are waiving that right?

"A. Yes.

"Q. Do you understand that those 12 men and women of the jury that we might have selected have to unanimously agree that you are guilty beyond a reasonable doubt before you can be convicted? Do you understand that?

"A. Yes.

"Q. Do you understand that by waiving the right to have the jury present that you are giving up that right to have them find you unanimously guilty?

"A. Yes.

"Q. Do you have any questions about this waiving of the jury trial at all?

"A. No.

"BY THE COURT:

"Q. Do you understand that you could have this heard before another Judge?

"A. Yes, Your Honor.

"Q. Do you understand that?

[ 268 Pa. Super. Page 281]

"A. Yes.

"Q. Since I heard the motion to suppress, you would be free to have it heard before another Judge rather than myself. Are you aware of that?

"A. Now I am, yes.

"MR. McBRIEN: I have no other questions relating to this part of the proceeding.

"MISS MARINARI [Assistant D. A.]: I have no questions.

(Witness excused.)

"THE COURT: All right. Has he signed the waiver?

"MR. McBRIEN: Yes, sir.

"THE COURT: With the knowledge that he could have a jury trial or trial by judge without a jury, and also that he could be tried by another judge without a jury but he has agreed to be tried by this Court even though this Court has heard the motion. The motion will be granted to hear this matter.

"Is that satisfactory to the Commonwealth?

"MISS MARINARI: Yes, Your Honor.

"THE COURT: You may proceed with the Commonwealth's case." (emphasis added).

Appellant then signed a written waiver of the form specified in Pa.R.Crim.P. 1101.

Appellant's non-jury trial immediately followed. The lower court found appellant guilty as charged and, after denying post-verdict motions,*fn3 sentenced him to pay a fine and costs of prosecution. This appeal followed.

In Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973), our Supreme Court held that a waiver of a jury trial is not knowing and intelligent unless the record indicates that the accused knew the "essential ingredients

[ 268 Pa. Super. Page 282]

    of a jury trial." See Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975). One of these essential ingredients is the requirement that "the jury be chosen from members of the community (a jury of one's peers)." Williams, supra. In Commonwealth v. Guenzer, 255 Pa. Super. 587, 592, 389 A.2d 133, 135 (1978), we stated that it was permissible under Williams to inform an accused of his right to be tried "by a jury of 12 of [his] peers," although "the better practice may be to elaborate on the meaning of the word 'peers.'" However, when the record reveals that no explanation of one of the "essential ingredients" was given, we must remand for a new trial. See Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978); Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); Commonwealth v. Duncan, 266 Pa. Super. 112, 403 A.2d 119 (1979); Commonwealth v. Knight, 256 Pa. Super. 434, 389 A.2d 1201 (1978).

In the instant case, the Commonwealth argues that the mere phrase "panel of jurors", as used in the waiver colloquy conducted by appellant's attorney,*fn4 informed appellant of his right to a jury chosen from members of his community, i. e., his peers. This argument is patently without merit. Neither the on-the-record colloquy nor the written waiver form signed by appellant sets forth the requirement. Compare, Commonwealth v. Harmes, 255 Pa. Super. 147, 386 A.2d 551 (1978). Accordingly, we must reverse and remand for new trial.

Reversed and remanded for new trial.


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