No. 151 January Term, 1977, Appeal from the Order of the Superior Court, No. 1254 October Term, 1975, affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Criminal Division, at No. 1040 October Sessions, 1974.
John W. Packel, Elaine De Masse, Philadelphia, Philadelphia County, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Jane C. Greenspan, Asst. Dist. Atty., Philadelphia County, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Larsen, J., filed an Opinion in Support of Affirmance in which Eagen, C. J., and Flaherty, J., join. Roberts, J., filed an Opinion in Support of Reversal in which O'Brien and Nix, JJ., join. Manderino, J., did not participate in the decision of this case.
Judgment of Sentence affirmed by an equally divided court.
Opinion IN SUPPORT OF AFFIRMANCE
The trial court's colloquy was adequate. Therefore, there can be no ineffective assistance of counsel. The judgment of sentence should be affirmed.
Opinion IN SUPPORT OF REVERSAL
Appellant Nathaniel Harris contends, and the record clearly establishes, that the trial court's colloquy on the waiver of appellant's right to jury trial was inadequate. See Pa.R.Crim.P. 1101 and Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). Trial counsel's failure to raise the inadequate colloquy issue in post-verdict motions renders counsel's assistance ineffective. See Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). ...