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COMMONWEALTH PENNSYLVANIA v. CARL MELVIN SMITH (10/05/82)

decided: October 5, 1982.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER,
v.
CARL MELVIN SMITH, JR.



No. 74 E.D. Allocatur Docket, 1982, Petition for Allowance of Appeal from an order of the Superior Court at No. 2120 October Term, 1979, dated January 19, 1982, reversing Judgment of Sentence and Granting a new trial at Nos. 449 & 552 January Term, 1979, of the Court of Common Pleas of Montgomery County.

COUNSEL

Ronald T. Williamson, Asst. Dist. Atty., Norristown, for petitioner.

Hubert David Yollin, Abington, for respondent.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Roberts

[ 498 Pa. Page 662]

OPINION OF THE COURT

The Commonwealth seeks allowance of appeal from an order of the Superior Court granting respondent a new trial on burglary, robbery, kidnapping, and related charges. Respondent was found guilty of the charges by a court sitting without a jury. The Superior Court granted relief on the

[ 498 Pa. Page 663]

    ground that trial counsel provided ineffective assistance in failing to object to a defective jury-trial-waiver colloquy.

Our Rules of Criminal Procedure require a trial judge to ascertain whether a defendant's waiver of the right to trial by jury "is a knowing and intelligent waiver, and such colloquy shall appear on the record." Pa.R.Crim.Proc. 1101. For the waiver to be "knowing and intelligent," the defendant must know "the essential ingredients of a jury trial" --

"the requirements that the jury be chosen from members of the community (a jury of one's peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel."

Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973).

The record is clear that respondent's understanding of these "essential ingredients" is not reflected in the on-the-record colloquy mandated by Pa.R.Crim.Proc. 1101. Although the judge explored respondent's understanding of the fact that "a jury would consist of twelve people who would be selected and sworn from a larger panel of jurors from all over [the county]," he did not explore respondent's understanding of either the fact that ...


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