No. 48 Harrisburg, 1982, Appeal from the Order of December 31, 1981 in the Court of Common Pleas of Perry County, Criminal Division, No. 82 and 83 of 1981
William C. Dissinger, Marysville, for appellant.
R. Scott Cramer, Assistant District Attorney, New Bloomfield, for Commonwealth, appellee.
Cercone, President Judge, and Cirillo and Hoffman, JJ.
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Appellant, Randy Smith, takes this appeal from the order of the trial court denying appellant's pre-trial motion to dismiss on double jeopardy grounds.*fn1 Appellant argues that the lower court erred in refusing this motion where
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appellant's first trial, a non jury trial, was halted by the trial judge's sua sponte order directing the withdrawal of appellant's jury trial waiver. We find appellant's argument to be without merit and accordingly affirm the trial court's order dismissing appellant's pre-trial motions.
On November 2, 1982, appellant appeared in court and waived his right to a trial by jury, whereupon on November 7, 1982, appellant's trial commenced before the court sitting without jury. Attorneys for both the Commonwealth and the defense made their opening statements. The Commonwealth then called its first witness to the stand and began direct examination. It was during the testimony of this witness that the judge halted the proceedings and stated his intention to order the withdrawal of appellant's jury trial waiver. In relevant part, the record contains the following statements:
THE COURT: In any criminal proceeding a person accused of a crime has numerous rights, various rights, one of which is to a trial. Now a trial is normally a trial by jury but in some circumstances that trial by jury can be waived. Until about six weeks ago the Commonwealth had a right to a jury trial. It is extremely unfortunate in my opinion but nevertheless I'm not the Supreme Court. Accordingly, the Commonwealth in this case was precluded from asking for a jury trial. Defense attempted to waive the jury trial, I accepted that waiver, and I'll admit here and now that whenever a trial court is requested to waive a trial by jury that that frequently is looked upon favorably because jury trials are a lot more cumbersome and time consuming and difficult to manage than non-jury trials. However, there is a fundamental difference between a jury trial and a judge trial and that is that obviously there are twelve jurors that have to be convinced that the burden of proof has been carried beyond a reasonable doubt whereas in a judge trial only one person, that being the judge, needs be convinced. Now normally that's not much of a problem but -- and this is where I think I perhaps owe all you folks a degree of an
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apology. I think I should have studied this case a little more and I think had I done that I would have probably recognized the names because I certainly recognize the faces of most everybody in the courtroom here today. We've had a lot of experience with some of you folks, more than others and some not. I agree. Now I frankly question my ability to be objective in this case and would feel better that the matter be submitted to a petit jury. Accordingly, under Rule 1102 of the Rules of Criminal Procedure, I have the authority at any time prior to verdict to cause the ...