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filed: July 31, 1981.


No. 2262 October Term, 1976, Appeal from Judgment of Sentence in the Court of Common Pleas, Trial Division-Criminal Section, of Philadelphia County, Nos. 179-181 November Term, 1975.


William J. Perrone, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Brosky, JJ. Spaeth, J., files a dissenting opinion.

Author: Hester

[ 289 Pa. Super. Page 279]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. Following a non-jury trial, appellant was found guilty of rape and

[ 289 Pa. Super. Page 280]

    simple assault. Concurrent sentences totaling four to ten years were imposed.

This is the second time this matter has been before this Court. The first appeal, Commonwealth v. Fortune, 257 Pa. Super. 30, 390 A.2d 230 (1978) was remanded when appellate counsel requested leave to withdraw, asserting that she could find no issues on which appellant might reasonably anticipate appellate relief. Judge Spaeth, in a brief opinion, stated, "Appellant waived his right to a jury trial. However, the waiver colloquy did not meet the requirements of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), in that the lower court failed to inform appellant that the jury would be composed of his peers, chosen from the members of his community." Trial counsel and appellate counsel were both members of the Defender's Association. The matter was remanded for the appointment of new, non-defender counsel "who may (if appellant wishes it) raise the jury-waiver and ineffectiveness issues in a new brief filed at this term number."

Then President Judge Jacobs, and Judge Van der Voort dissented. Former President Judge Watkins, not then being a member of the Court, did not participate. Judge Price concurred and dissented in the following statement:

"I concurred in the result in Commonwealth v. Liska, 252 Pa. Super. 103, 380 A.2d 1303 (1977) because I did not agree with the language now cited by the majority as precedent in this situation for spelling out in advance, and in effect approving the merits of an argument not yet advanced to this court. I am strongly opposed to this practice. Therefore, like the majority, I would deny the petition to withdraw. However, I would not remand for the appointment of new counsel. I would simply deny the petition to withdraw and indicate that our review reveals an arguably meritorious issue requiring an advocate's brief on the merits within thirty days or risk sanctions."

It would appear that the court was equally divided on the question of remand for the appointment of new counsel.

[ 289 Pa. Super. Page 281]

The matter was remanded and new counsel was appointed. The appeal was argued before this Court en banc and is ripe for resolution.

Appellant now asserts that he did not knowingly and voluntarily waive his right to a trial by jury due to the fact that in its colloquy, the court failed to explain that the jury would be chosen from members of the community -- from appellant's peers.

This issue was not asserted in post-verdict motions, therefore, it is waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Appellant, here represented by counsel other than his guilty plea counsel, argues that his guilty plea counsel was ineffective for waiving the issue. See, Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); Commonwealth v. Knight, 256 Pa. Super. 434, 389 A.2d 1201 (1978).

Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides, in part:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record . . . .

The jury waiver colloquy in this case was as follows:

Q. Mr. Fortune, how old are you?

A. 43.

Q. And do you read and write and understand the English language?

A. Fairly well.

Q. Do you understand the nature of the charges against you today?

A. Some.

Q. You understand you are charged with rape, forcible rape of the young girl? Do you understand that?

[ 289 Pa. Super. Page 282]

A. Yes.

Q. You understand that you have a right to a trial by jury on those charges?

A. Yes.

Q. And that you would help with your attorney as well as the District Attorney select 12 people that would sit as that jury and all 12 of those people must be convinced beyond a reasonable doubt that you are guilty, before you could be found guilty. Do you understand that?

A. Yes, sir.

Q. Do you understand if one person of that 12 did not feel you were proven guilty beyond a reasonable doubt, you could not be found guilty ...

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