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COMMONWEALTH PENNSYLVANIA v. GERALD CARTER (04/04/85)

submitted: April 4, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
GERALD CARTER, APPELLANT



Appeal from Judgment of Sentence Court of Common Pleas Criminal Division, Philadelphia County No. 82-04-1988

COUNSEL

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

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

Cavanaugh, Olszewski and Hoffman, JJ.

Author: Cavanaugh

[ 347 Pa. Super. Page 626]

In this appeal, Gerald Carter contends that his due process rights and rights under Pa.R.Crim.P. 1101 were violated because he was tried within the Career Criminal Program of the Philadelphia Common Pleas Court. He argues that because the judges in that program are aware that defendants assigned thereto have prior convictions, he was deprived of his right to be tried without a jury before an impartial factfinder, and that the District Attorney's Office usurped authority which our Supreme Court had previously denied it in creating a situation wherein the trial court had no choice but to grant a jury trial. Appellant's other contention is that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated. We disagree with these contentions and therefore affirm.

I.

Appellant was assigned by the Philadelphia District Attorney's Office to be tried within the "Career Criminal Program" of that county's Common Pleas Court. According to the lower court, this program was instituted by the District Attorney's Office and the President Judge for the purpose of more efficiently prosecuting recidivists. In order to be assigned to the program, a defendant must have been convicted of certain enumerated offenses a specified number of times.*fn1 Once assigned to the program, a defendant

[ 347 Pa. Super. Page 627]

    is tried before one of three judges. As the lower court stated: "Because of their assignment to the Program, judges know that, generally, defendants coming before them have been designated Career Criminals by the District Attorney." Lower Court op. at 18 n. 20.

The program's advantage apparently lies in that, unlike the usual practice in the District Attorney's Office, individual prosecutors are assigned to cases from pre-trial through the conclusion of the trial. Thus, a single, experienced prosecutor and a special staff deal with all stages of the case. According to the lower court, this procedure of "intensive vertical prosecution" helps to avoid excessive delays and promotes the more efficient prosecution of repeat offenders.

Appellant contends that he was unable to exercise his right to waive a jury trial because the judge before whom he was tried was aware that he had a prior record. This court has previously disposed of this argument in Commonwealth v. Hailey, 332 Pa. Super. 167, 172-73, 480 A.2d 1240, 1242-43 (1984):

Appellant also challenges the administrative procedure employed by the Philadelphia District Attorney's Office known as the Career Criminal Program. Appellant claims that cases in which the accused has certain prior convictions are assigned to one of three designated judges and this assignment effectively denies an accused his "right" to a non-jury trial because the trial judge knows the accused has prior convictions. Appellant's argument must fail as it is based on an incorrect premise; an accused does not have an absolute right to a bench trial. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Edney, 318 Pa. Super. 362, 464 A.2d 1386 (1983).

In Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), the United States Supreme Court wrote:

[ 347 Pa. Super. Page 628]

In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury.

In Singer, the court upheld the Federal Rule whereby the defendant's right to waive a jury trial is conditioned on the consent of both court and prosecutor. "[I]f either of them refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury -- the very thing that the Constitution guarantees him." Singer, supra, 380 U.S. at 36, 85 S.Ct. at 790, 13 L.Ed.2d at 638. (In Pennsylvania, Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) denied the prosecutor the absolute right to demand a jury trial.) A defendant simply does not have an absolute right to waive a jury trial. ...


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