No. 237 Harrisburg, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Dauphin County, No. 1704, C.D. 1979.
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Harrisburg, Deputy District Attorney, for Commonwealth, appellee.
Brosky, Wieand and Montemuro, JJ.
[ 299 Pa. Super. Page 413]
Appellant was convicted of criminal attempt to commit murder after a non-jury trial in the Court of Common Pleas of Dauphin County. Post-trial motions were denied and appellant was sentenced to a term of not less than five (5) nor more than ten (10) years imprisonment. Appellant thereafter filed a petition to modify sentence which the lower court also denied. This appeal followed.
Appellant's first contention is that he did not knowingly and intelligently waive his right to a jury trial. The basis for this contention is that appellant was not adequately advised in the waiver colloquy of two of the three "essential ingredients" necessary to constitute a valid waiver under Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) and Pa.R.Crim.P. 1101. This issue was not raised in post-trial motions and therefore the merits of this issue have not been properly preserved for appellate review. Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealth v. O'Brien, 273 Pa. Super. 198, 417 A.2d 236 (1979). However, appellant has couched the issue within the context of an ineffective assistance of counsel claim, in that trial counsel failed to challenge the defective colloquy in post-trial motions. Since this appeal represents the earliest opportunity at which appellant is represented by new counsel, the issue is properly before us at this time. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
The standard of review in determining whether or not counsel has rendered ineffective assistance necessitates an initial inquiry into whether the underlying claim is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the underlying claim is found to be of arguable merit, only then may we proceed to determine whether there was some reasonable basis for counsel's actions
[ 299 Pa. Super. Page 414]
designed to protect his clients interests. Commonwealth v. Hubbard, supra. If the basis for counsel's actions cannot be determined from the record, the appropriate remedy is to remand the case for an evidentiary hearing on the issue. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).
In Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), our Supreme Court held that where a defendant is not advised, on the record, of the "essential ingredients of a jury trial" the claim is not only of arguable merit but "under no circumstances can it be said that previous counsel's failure to raise this issue resulted from any reasonable strategy designed to effectuate his client's interests." Id., 477 Pa. at 84, 383 A.2d at 833-834. Therefore, the court found no necessity to remand the record for an evidentiary hearing and held that the proper remedy was a new trial.
The colloquy in the instant case was as follows:
Mr. Hoover [district attorney]: Mr. Sanders, in requesting a waiver trial you give up your constitutional right to a jury trial. What that means [is that] twelve members of the Dauphin County community would come together to decide your guilt or innocence, that Mr. Federico [defense counsel] could participate in the selection of that jury and that the verdict of that jury must be unanimous on your guilt or innocence, do you understand that?
Mr. Hoover: How old are you?
Mr. Sanders: Twenty-five.
Mr. Hoover: How far did you go in school?
Mr. Sanders: Eleventh grade.
Mr. Hoover: Understanding all your rights to a jury trial at this time you waive that right, and request that Judge Morgan hear this case?
Mr. Hoover: Will the court accept the waiver.
[ 299 Pa. Super. Page 415]
Appellant specifically contends that the colloquy is defective in two respects. First, instead of advising appellant of his right to a trial by a jury chosen from members of the community, appellant was told that twelve members of the community could come together to decide his guilt or innocence. Second, rather than informing appellant that he had the right to participate in the selection ...