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COMMONWEALTH PENNSYLVANIA v. HENRY KELLUM (02/06/85)

filed: February 6, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
HENRY KELLUM, APPELLANT



No. 912 Philadelphia, 1983, Appeal from the Judgment of Sentence of March 22, 1983 in the Court of Common Pleas of Philadelphia County, Criminal Division No. 81-10-999.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cirillo, Beck and Cercone, JJ. Cirillo, J., files a concurring opinion.

Author: Cercone

[ 339 Pa. Super. Page 515]

This is a direct appeal from judgment of sentence which was imposed pursuant to Henry Kellum's conviction following a jury trial for robbery and related charges. They arose from appellant's purse-snatch assault of an elderly woman in an attempt to rob her. On March 22, 1983, following the denial of post-verdict motions, appellant was sentenced to a prison term of three and one-half to seven years. This appeal followed.

Appellant has an extensive criminal history; he was placed by the District Attorney's Office of Philadelphia, therefore, into the Career Criminal Program. One assistant district attorney and three particular judges are responsible for cases which are placed in this program. See Commonwealth v. Hailey, 332 Pa. Superior Ct. 167, 480 A.2d 1240 (1984). (Appellant's challenges to the Career Criminal Program, on grounds that it denies an accused his "right" to a non-jury trial because the trial judge knows the accused has prior convictions, found to be meritless.) In the instant case, appellant presented certain pre-trial motions on the day scheduled for the commencement of his jury trial. First, he challenged his inclusion in the Career Criminal Program on grounds that he was being tried for a felony of the third degree, which he argued, did not qualify him for the Program. (Appellant does not argue this on appeal.)

[ 339 Pa. Super. Page 516]

The trial court denied his challenge. Then, immediately thereafter, counsel requested a non-jury trial. Despite case law to the contrary,*fn1 it appears from the record that the trial judge, the defense attorney, and the assistant district attorney all considered appellant's request for a non-jury trial as tantamount to a request to transfer the case out of the Program to a judge who was unaware of appellant's criminal history. In effect, it was another way of attempting to secure the result which was denied by the court's ruling on appellant's first pre-trial motion. The court denied appellant's motion for a non-jury trial. Appellant proceeded to a jury trial that same day.

On appeal, appellant contends that he should be granted a new trial because the trial court abused its discretion and violated Pa.R.Crim.P. 1101.*fn2 He alleges that the court's denial of his request for a non-jury trial was based entirely on a concern for judicial economy, was made without an appropriate colloquy, and without proper consideration of his reasons for his request.

Appellant relies on Commonwealth v. Maxwell, 312 Pa. Superior Ct. 557, 459 A.2d 362 (1983) in which this court granted appellant a new trial when the trial court, apparently for reasons of judicial economy, refused appellant's motion for a non-jury trial. We said that while the trial court is not constitutionally prohibited from denying a defendant's request to waive a jury trial, Commonwealth v. Correa, 485 Pa. 376, 402 A.2d 1011 (1979), that, in the absence of guidelines to assist trial courts in exercising their discretionary power, we must review such a decision

[ 339 Pa. Super. Page 517]

    of the trial court on a case by case basis. Commonwealth v. Giaccio, 311 Pa. Superior Ct. 259, 457 A.2d 875 (1983) in Maxwell, supra, 312 Pa. Superior Ct. at 561, 459 A.2d at 364.

Central to this court's analysis in Maxwell was the fact that the record did not indicate the reasons for Maxwell's request to waive his right to a jury trial, it did not reflect the Commonwealth's reasons for wanting a jury trial, nor did a colloquy appear of record as required by Pa.R.Crim.P. 1101.

This case is distinguishable from Maxwell in a very significant respect. All parties virtually agree that appellant's request to proceed with a non-jury trial was an alternate way of attempting to be transferred out of the Career Criminal Program and to a judge other than the one assigned. As appellant states in his brief,

"[a]lthough appellant in his argument to the trial court did not use the word 'recusal', his intent that Judge McCrudden should not hear the matter as a bench trial is clearly implied by appellant's position that his case had been wrongfully assigned to Judge McCrudden's calendar as a 'career criminal' matter and should be removed."

And, during the pre-trial proceedings, immediately after the court denied appellant's challenge to the Career Criminal ...


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