No. 2413 October Term, 1979, APPEAL FROM THE JUDGMENT OF SENTENCE OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL DIVISION, AT NOS. 1953-1955 APRIL TERM, 1979
Paul Messing, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Hoffman and Cirillo, JJ.*fn* Hoffman, J., files a dissenting opinion.
[ 310 Pa. Super. Page 76]
In the instant case, testimony revealed that appellant met with Ivy Crossland, the victim, on April 18, 1979, to discuss an outstanding debt. An argument ensued, appellant walked away from Mr. Crossland, then turned and approached him with a knife, approximately 12 inches in length, and proceeded to slash Mr. Crossland's neck. Mr. Crossland, wounded, came upon a police car and requested assistance, directing the officers to appellant's residence. The officers came upon the appellant attempting to throw away the weapon. The officers thwarted appellant's attempt, and took appellant and weapon into custody.
On September 7, 1979, appellant was found guilty in a non-jury trial of aggravated assault, recklessly endangering another person, and two counts of possessing an instrument of crime. Following the denial of post-trial motions and the imposition of sentence, appellant took this appeal. Because appellant challenged the effectiveness of trial counsel and
[ 310 Pa. Super. Page 77]
was represented on the appeal by counsel from the same office, we remanded the matter for the appointment of new counsel. Commonwealth v. Quarles, 284 Pa. Super. 473, 426 A.2d 145 (1981). Counsel was appointed, and new briefs were filed. This case is now properly before us.
Appellant contends that trial counsel was ineffective in failing to challenge his jury waiver colloquy in post-trial motions. In reviewing allegations of ineffective assistance of counsel, "our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). However, "[i]t is only when the claim which was forgone was of arguable merit that we must make an inquiry into the basis for post-trial counsel's decision not to pursue the matter." Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Thus, we must first determine whether appellant's jury trial waiver was indeed defective.
Before a defendant may waive his right to a jury trial, Pa.R.Crim.P. 1101 requires the judge to ascertain in an on-the-record colloquy whether the waiver is knowing and intelligent. The instant colloquy was as follows:
[Public Defender]: You understand, do you not, [appellant], that under the Constitution and under the law you have an absolute right to a trial by jury? Do you understand that sir?
[Appellant]: I understand.
[Public Defender]: That, of course, means that you and your lawyer would have a right to select from a panel of Philadelphia voters, 12 people to sit on a jury who would be charged with determining whether you were guilty or not guilty. Do you understand that?
[Public Defender]: Before the jury was seated, you would have the right to ask the Court to exclude any panel member because he was biased or prejudiced, and you
[ 310 Pa. Super. Page 78]
would have the right to have seven panel members excluded simply because you didn't want them to sit on your jury. Do you understand that?
[Public Defender]: If anyone of those 12 people decided you were not guilty, the case would result in a mistrial and the Commonwealth could ...