No. 1331 OCTOBER TERM, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County - Nos. 269-270 September Session, 1978.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., concurs in the result.
[ 284 Pa. Super. Page 246]
The lower court, sitting without a jury, found appellant guilty of theft by receiving stolen property,*fn1 and unauthorized use of an automobile;*fn2 post verdict motions were denied and appellant was sentenced to three years probation.
Appellant here appeals the judgment of sentence raising three issues.
1) Whether the evidence was insufficient as a matter of law to sustain the convictions;
2) Whether the record adequately establishes that appellant waived his right to a trial before a jury "knowingly and intelligently"; and
3) Whether defense counsel was ineffective in failing to assert in post verdict motions the claimed deficiency of the jury waiver colloquy.
The Commonwealth's case consisted of the following: On June 24, 1978, a 1978 Datsun 280Z automobile was reported stolen. On July 11, 1978, the above mentioned Datsun, allegedly driven by appellant, pulled alongside a parked police vehicle and asked the officers for traffic directions. Appellant drove away in the general direction given him by the officers. One of the police officers subsequently determined that the Datsun was on the "hot sheet". The police proceeded to follow the Datsun but were unable to maintain it in sight. Appellant and his brother were later arrested as they walked in the general vicinity where the police lost sight of the car. The Datsun automobile was found parked about two blocks from the place of the arrest. The owner of the Datsun testified that the first time he saw his car since it was stolen was on July 11, 1978 when it was parked at the police station. He further testified that he did not know the appellant and had not given him permission to use the car.
At trial, counsel for appellant made an oral demurrer to the Commonwealth's case. The ...