Appeal from the Order entered November 26, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 83-11-783.785-788.
Alan Sacks, Assistant District Attorney, Philadelphia, for Com., appellant.
James R. Rosato, Philadelphia, for appellee.
McEwen, Johnson and Hoffman, JJ.
[ 364 Pa. Super. Page 638]
This is a Commonwealth appeal from the order below granting appellee a new trial. The Commonwealth contends that the lower court erred in determining that appellee's waiver of his right to a jury trial was involuntary, and thus should not have granted a new trial. For the reasons that follow, we reverse the order below, reinstate the verdict, and remand for sentencing.
Appellee was arrested in connection with a break-in and assault at his wife's house. He subsequently requested a non-jury trial. A lengthy jury waiver colloquy was conducted. During the colloquy, the court advised appellee of the potential maximum sentences he could receive. The court then granted appellee's request. Following his trial, the court found appellee guilty of simple assault, recklessly endangering another person, and criminal trespass as felonies of the second and third degree. Appellee objected to the entering of the verdict, alleging that the jury waiver was defective, and filed a motion for a new trial. In his motion, appellee argued that his waiver of his right to a jury trial was involuntary because the court, during the waiver colloquy, failed to state the maximum sentence he could receive if he were convicted of criminal trespass as a felony of the second degree. After oral argument, the
[ 364 Pa. Super. Page 639]
lower court noted that it had misrepresented the sentence with regard to that charge, and granted the motion. This appeal followed.
The Commonwealth contends that the lower court erred in determining that appellee's jury waiver was involuntary simply because the lower court failed to state the maximum sentence appellee could receive if he were convicted of criminal trespass as a felony of the second degree. The right to a jury trial for non-petty criminal offenses is a fundamental principle of American law. U.S. Const. amend. VI; Pa. Const. art. I, §§ 6, 9; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). A criminal defendant may waive his or her right to a jury trial, however, provided that the waiver is knowing and intelligent. Pa.R.Crim.P. 1101. See also Commonwealth v. Hines, 496 Pa. 555, 559-60, 437 A.2d 1180, 1182 (1981) (to be effective, waiver of any constitutional right must be knowing and intelligent). In order for a jury waiver to be valid, the defendant must understand the "essential ingredients" of a jury trial:
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.
Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973). A judge must ascertain that the waiver is a voluntary, knowing and intelligent decision by the defendant. Commonwealth v. Baxter, 282 Pa. Superior Ct. 467, 470, 422 A.2d 1388, 1390 (1980). The intelligence of a waiver of a jury trial "may not be presumed, guessed [at], or conjectured." Commonwealth v. Hooks, 450 Pa. 562, 565, 301 A.2d 827, 828 (1973). Moreover, the voluntariness of a waiver may be vitiated by misrepresentation as to sentencing if the defendant is shown to have relied on the misrepresentation ...