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filed: April 4, 1985.


No. 01272 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 8101969A.


John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Popovich, Hoffman and Lipez, JJ. Popovich, J., files a concurring and dissenting opinion.

Author: Hoffman

[ 341 Pa. Super. Page 383]

Appellant contends that (1) the evidence was insufficient to prove the elements of the offense charged; (2) trial counsel was ineffective for failing to challenge the defective jury trial waiver colloquy; (3) trial counsel was ineffective for failing to object to the testimony of appellant's wife; and (4) the lower court erred in admitting into evidence a letter written by appellant's wife. We reverse.

On February 11, 1981, appellant and his wife were charged with fraudulently receiving public assistance payments totaling $5,958.50 because they failed to report to the Allegheny County Board of Assistance the income received from the wife's employment during the period of August 5, 1977 through June 27, 1979. Following a non-jury trial, both co-defendants were found guilty. Post-verdict motions were denied, and appellant was sentenced to a term of probation for one year plus restitution and costs. Subsequently,

[ 341 Pa. Super. Page 384]

    appellant, represented by new counsel, filed this appeal.

Appellant first challenges the sufficiency of the evidence to support his conviction. It is well-established that the evidence is sufficient if "viewing the evidence in the light most favorable to the Commonwealth, and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt." Commonwealth v. Contakos, 492 Pa. 465, 468, 424 A.2d 1284, 1286 (1981), quoting Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975). The elements of the offense in question are statutorily outlined as follows:

§ 481. False statements; investigations; penalty

(a) Any person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a wilfully false statement or misrepresentation, or by impersonation or by wilfully failing to disclose a material fact regarding eligibility or other fraudulent means, secures, or attempts to secure, or aids or abets or attempts to aid or abet any person in securing assistance, or Federal food stamps, commits a crime which shall be graded as provided in subsection (b).

(b) any person violating subsection (2) commits the grade of crime determined from the following schedule:

Amount of Assistance

     or Food Stamps Degree of Crime

$3,000 or more Felony of the third degree

$1,500 to $2,999 Misdemeanor of the first degree

$1,000 to $1,499 Misdemeanor of the second degree

$999 and under, or an

     attempt to commit any

     act prohibited in

     subsection (2) Misdemeanor of the third degree

Pursuant to 42 Pa.C.S. § 1515(a)(7) (relating to jurisdiction and venue), jurisdiction over cases graded a misdemeanor of the third degree under this section shall be vested in district justices.

62 P.S. § 481 (Supp. 1984-85).

[ 341 Pa. Super. Page 385]

Here, the record reveals the following facts: Periodic interviews were conducted by the social workers from the Department of Public Welfare. At these interviews which were held on August 5, 1977, May 31, 1978, September 20, 1978, and March 14, 1979, appellant, in his wife's presence, stated that neither of them was receiving any income. Additionally, both parties indicated that they had been living together during the applicable period. It is undisputed that, during this time, appellant's wife was employed by Allegheny County. Because appellant failed to disclose the material fact that his wife was employed, we find that the evidence was sufficient to convict appellant.

Appellant next alleges that trial counsel was ineffective in failing to challenge his jury waiver colloquy. "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 interest." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). However, we must first determine whether the issue underlying the charge of ineffectiveness possesses arguable merit before we inquire into the basis for counsel's decision. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980). "Counsel cannot be found ineffective for failing to assert a meritless claim." Id., 489 Pa. at 91 n. 6, 413 A.2d at 1028 n. 6.

In the instant case, the lower court questioned appellant as to his understanding of (1) his right to be tried by a jury of twelve people, (2) his right to participate in the selection of the jury, (3) the area from which the jury pool would be chosen, and (4) his right to challenge peremptorily five of those jurors and any other jurors for cause. (N.T. July 23, 1981 at 5-7). The court also asked appellant whether he had discussed in advance with his attorney his right to waive a jury trial, whether anyone had pressured him into waiving, and whether he had consumed any alcoholic beverages or narcotics within the last 24 hours. (Id. at 8-10). In

[ 341 Pa. Super. Page 386]

    response to further questioning, appellant indicated that he wished to be tried without a jury and that his decision to waive a jury trial was made of his own free will. (Id. at 8-9). Appellant also signed, in the presence of counsel, a written waiver of his right to a jury trial. (Id. at 10-11). Upon completing the colloquy, the lower court accepted appellant's waiver and commenced hearing the case as a non-jury case.

Appellant argues specifically that the above-described colloquy was defective because the court failed to inform him that he would be waiving his right to a unanimous verdict. In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), our Supreme Court stated that the "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." Id., 454 Pa. at 373, 312 A.2d at 600. Subsequently, in Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978), and Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978), because the trial court in those cases failed to inform the defendant that the verdict of the jury had to be unanimous in order to convict, the Supreme Court found that the defendant had not effectively waived his right to a jury trial. However, in Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982), although the judge conducting the colloquy did not explore the defendant's understanding of either the fact that the jury's verdict had to be unanimous or the fact that the defendant could participate in jury selection, our Supreme Court found that the defendant was fully aware of these requirements because he had signed a written waiver form which stated that he "'fully understand[s]' the ingredients of a jury trial, including the unanimity and defendant participation requirements which were not explained in the colloquy." Id., 498 Pa. at 663, 450 A.2d at 974. Therefore, the Court concluded that trial counsel was not ineffective for failing to object to the defective colloquy.

[ 341 Pa. Super. Page 387]

We find Smith distinguishable from the instant case. Here, the waiver form signed by appellant stated only that he waived his right to a jury trial and elected to be tried by a judge without a jury. (N.T. July 23, 1981 at 10-11). There is no indication in the colloquy, waiver form, or anywhere in the record that appellant was ever informed of or understood his right to a unanimous verdict.*fn1

The Commonwealth correctly points out that a "totality of the circumstances" approach has been adopted by our courts in reviewing an allegedly defective guilty plea colloquy. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Campbell, 309 Pa. Superior 214, 455 A.2d 126 (1983). In Commonwealth v. Anthony, 307 Pa. Superior 312, 453 A.2d 600 (1982), aff'd, 504 Pa. 551, 475 A.2d 1303 (1984), this Court found that, although the guilty plea colloquy between the trial court and the defendant did not include any mention of the need for a unanimous verdict in order to convict, the colloquy was not defective because the record revealed that the plea tendered was knowing, intelligent and voluntary. On appeal, the Supreme Court agreed.

[ 341 Pa. Super. Page 388]

Additionally, the totality of the circumstances test has apparently been extended to jury waiver colloquies as well. See Commonwealth v. DeGeorge, 506 Pa. 445, 485 A.2d 1089 (1984). In DeGeorge, there was no on-the-record colloquy, and the written waiver, signed by the defendant, only stated that the defendant "pleads not guilty and . . . waives a jury trial and elects to be tried by a judge without a jury." Id., 506 Pa. at 449, 485 A.2d at 1091. Therefore, our Supreme Court remanded the case to the trial court for evidentiary proceedings to determine whether the waiver of trial by jury was knowing and intelligent. The Court reasoned that:

In the absence of any assertion of record indicating that the waiver was knowing and intelligent, we are unable to determine whether DeGeorge has received effective assistance of counsel in waiving a jury trial. We have no indication of the extent to which counsel and client may have conferred on that which was waived, or what colloquy was conducted at the time the written waiver was executed.

Id., 506 Pa. at 449-450, 485 A.2d at 1091. We note that the Supreme Court rejected the Morin remedy of remanding for a new trial. See Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). The DeGeorge Court noted that decisions subsequent to Morin "permitted the consideration of circumstances outside the content of the of-record colloquy in determining the validity of a [jury trial] waiver." 506 Pa. at 449-450, 485 A.2d at 1091, citing Commonwealth v. Anthony, supra; Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983);*fn2 Commonwealth v. Smith, supra; Commonwealth v. Williams, supra.

[ 341 Pa. Super. Page 389]

In the instant case, even applying the totality of the circumstances test to look at the entire record, rather than just the on-the-record colloquy, we find that there is no evidence to indicate that appellant understood all of the essential ingredients of a jury trial, i.e. that the verdict must be unanimous in order to convict.

Accordingly, we remand the case to the lower court for evidentiary proceedings to determine whether the waiver of trial by jury was knowing and intelligent. Commonwealth v. DeGeorge, supra. If, on remand, the court finds that the waiver was knowing and intelligent, then appellant will have suffered no prejudice and therefore will not be entitled to a new trial on ineffectiveness grounds. See Commonwealth v. Garvin, 335 Pa. Superior 560, 485 A.2d 36 (1984) (en banc). However, if the court finds that the waiver was unknowing and unintelligent, then appellant will be entitled to a new trial.*fn3

Judgment of sentence reversed and case remanded for proceedings consistent with this opinion. ...

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