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COMMONWEALTH PENNSYLVANIA v. MANUEL VOLK (04/23/82)

filed: April 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
MANUEL VOLK, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ROSALYN VOLK, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Lancaster County, at No. 36 of 1978. Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Lancaster County, at No. 37 of 1978.

COUNSEL

Penn B. Glazier, Lancaster, for appellants.

Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.

Cercone, President Judge, and Hester and Wieand, JJ.

Author: Cercone

[ 298 Pa. Super. Page 297]

These consolidated appeals are from the judgments of sentence entered by the Court of Common Pleas of Lancaster County. Following a non-jury trial, each of the appellants was convicted of theft by deception, conspiracy and violation of Section 481(a) of the Public Welfare Code. The amount of public assistance funds fraudulently obtained was estimated to be $9,824.90. Appellant, Rosalyn Volk, was ordered to make restitution, her sentence of imprisonment was suspended and she was placed on probation for twenty-three months with respect to the crime of theft by deception. Appellant, Manuel Volk, was ordered to make restitution and was sentenced to a term of imprisonment of not less than three months nor more than twenty-three months. Post verdict motions were filed and denied. Herein, appellants raise several allegations of error.

Appellants first claim that their waiver of a jury trial was defective because they were not advised during the colloquy (1) of their right to participate in the selection of the jury panel, (2) that the jury was to be chosen from members of appellants' community, or (3) that the verdict of

[ 298 Pa. Super. Page 298]

    the jury must be unanimous. According to Pennsylvania Rule of Criminal Procedure, Rule 1101, a defendant may waive a jury trial. Although there is no per se prophylactic rule reversing convictions for failure to comply with Rule 1101, the Supreme Court in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), concluded that the purpose of the colloquy is to show that the defendant understands (1) that the jury would be comprised of defendant's peers, (2) that the verdict must be unanimous, and (3) that the defendant could participate in jury selection. The Williams court further held that there could be adequate substitutes for the colloquy. Herein, appellants signed a written waiver of jury trial. This waiver contained the Williams requirements. The waiver form read:

WAIVER OF JURY TRIAL

AND NOW, January 10, 1979, comes the defendant and pleads not guilty and with the consent of his attorney, and the attorney for the Commonwealth and the approval of the judge, waives a jury trial and elects to be tried by a judge without a jury, fully understanding that if he were tried by a jury:

1. The jury would be chosen from members of the community thereby producing a jury of his peers.

2. That any verdict rendered by a jury must be unanimous and,

3. That he would be permitted to participate in the selection of a jury panel.

This waiver is identical to the one reviewed and deemed acceptable in Commonwealth v. Harmes, 255 Pa. Superior Ct. 147, 386 A.2d 551 (1978); in fact, Harmes was a Lancaster County case. The Harmes court concluded that the waiver set forth those ingredients of a jury trial which are necessary for the defendant to understand the significance of the right he is waiving. As here, the appellant in Harmes did not allege that he did not understand the waiver form. Accordingly, our court held in Harmes that appellant had failed to carry his burden and establish that his waiver was

[ 298 Pa. Super. Page 299]

    not knowing and intelligent. Because we are instantly faced with the identical factual scenario, we too find that appellants have not carried their burden.

As a second point of error, appellants argue denial of their right to representation of counsel because the court denied the request that Mr. Volk be permitted to participate in the examination of witnesses and the conduct of the trial. Clearly, a defendant has a constitutional right to represent himself if he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1976). However, appellants herein chose to be represented by counsel. According to the American Bar Association Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, Section 5.2, there are certain decisions relating to the conduct of the case which are ultimately for the accused and others which are exclusively for defense counsel. Those decisions to be made by the accused after consultation with counsel include (1) what plea to enter, (2) whether to waive a jury trial and (3) whether to testify on his own behalf. The decisions of what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical trial decisions are within the exclusive province of the lawyer after consultation with his client. The court below cannot be faulted for denying the request to permit Mr. Volk to participate actively in court. By constantly conferring and consulting with his chosen attorney, Mr. Volk certainly would be assured of expressing his views and participating in his own defense. Once ...


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