No. 230 October Term, 1979, Appeal from Order of the Court of Common Pleas of Montgomery County, Criminal Division, dated January 12, 1979 at No. 1399 January Term 1975 Under Post Conviction Hearing Act.
Richard M. Meltzer, Philadelphia, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Brosky, Wickersham and Roberts, JJ.*fn* Brosky, J., files a concurring opinion.
[ 285 Pa. Super. Page 535]
On or about March 25, 1975, defendant-appellant, George J. McDonald was arrested and charged with burglary, conspiracy and other criminal activity.
On August 26, 1975 he appeared before the Honorable Robert W. Honeyman of Montgomery County in a non-jury trial. He was found guilty of the various crimes charged and, through his counsel filed timely post-verdict motions. After denial of post-verdict motions and a sentence of not less than ten nor more than twenty years on the burglary charge, the defendant appealed to this court.
Our court affirmed the judgment of sentence and a petition for allowance of appeal to the Supreme Court of Pennsylvania was subsequently denied.
Thereafter, defendant represented by new counsel filed a petition under the Post Conviction Hearing Act.*fn1
[ 285 Pa. Super. Page 536]
The thrust of defendant's petition was that he had been denied effective assistance of counsel at his original non-jury trial before Judge Honeyman. Specifically, he complained that his jury trial colloquy was defective because he had not been advised on the record that he had a right to participate in the selection of the jury.
Judge Honeyman in an Opinion dated January 12, 1979 found the PCHA petition to be without merit, holding that although the appellant was not expressly told that he had the right to participate in the jury selection, nonetheless, his long criminal experience and criminal court experience including jury trials gave him adequate knowledge of criminal procedure to make the colloquy that was held constitutionally effective. Judge Honeyman discussed and distinguished Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978) as well as Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).
Without regard to Judge Honeyman's analysis, we need not reach that issue because after George J. McDonald took an appeal to our court from the January 12, 1979 order dismissing his PCHA petition, it ...