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COMMONWEALTH PENNSYLVANIA v. KENNETH CARSON (12/30/83)

decided: December 30, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KENNETH CARSON, A/K/A REGINALD BROWN, APPELLANT



No. 34 E.D. Appeal Docket 1982, Appeal from Order of Superior Court of Pennsylvania, No. 421 Philadelphia 1981, dated April 2, 1982, affirming denial of Post-Conviction Hearing Act relief in Philadelphia County, Common Pleas Court, per No. 914 November 1977, 298 Pa. Super. 633; 445 A.2d 197

COUNSEL

Burton A. Rose (Court-appointed), Philadelphia, for appellant.

Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Div., Steven Cooperstein, Asst. Dist. Atty., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., filed a concurring opinion.

Author: Zappala

[ 503 Pa. Page 370]

OPINION

The question to be decided in this appeal is whether the Appellant is entitled to a new trial on the basis that his original trial counsel was ineffective. The Appellant was convicted of burglary and related charges in a non-jury trial on March 6, 1978. Following the denial of post-verdict motions, he was sentenced to a term of imprisonment not less than two nor more than twelve years. No direct appeal was taken following imposition of sentence. In April of 1979, the Appellant filed a pro se petition for relief under the Post-Conviction Hearing Act. Counsel was appointed and a hearing was held, following which the requested

[ 503 Pa. Page 371]

    relief was denied. The Superior Court affirmed. This Court granted allocatur to consider the question whether the Appellant was denied effective assistance of counsel by reason of counsel's failure to explain all of the ingredients of the right to a trial by jury during the colloquy in which the Appellant waived his right to jury trial. We now affirm.

The law to be applied in resolving the question presented is set forth in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). In that case this Court reversed a conviction and ordered a new trial where neither the original record, nor the record of a subsequent hearing, justified a finding that the waiver of jury trial was knowing and intelligent. There we observed that

Nowhere on the record is there any indication that [the defendant] knew the essential ingredients of a jury trial which are necessary to understand the significance of the right he was waiving. These essential ingredients, basic to the concept of a jury trial, are 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 . . . . In view of the failure of the record to establish that appellant had sufficient knowledge of the right which it is now contended he waived, we are unable to find that the waiver was either knowing or intelligent.

Commonwealth v. Williams, 454 Pa. at 373, 312 A.2d at 600.

The record of the colloquy conducted before the trial judge in this case clearly indicates that the Appellant was informed that a jury consists of twelve jurors whose verdict would have to be unanimous, and that he would be able to participate with counsel in the selection of the jurors. The Appellant argues only that because it was not explained that the jury would be chosen from "members of the community" or from his "peers", the colloquy was ...


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