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Commonwealth v. Dowling

November 19, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ERIC DOWLING, APPELLANT



Appeal from the Order of the Superior Court at No. 167 EDA 2006 Entered January 8, 2007, Reargument Denied March 22, 2007, Affirming the Order of the Delaware County Court of Common Pleas, Criminal Division, at No. 4032-03 Entered December 8, 2005.

The opinion of the court was delivered by: Mr. Justice Baer

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

ARGUED: May 14, 2008

OPINION

Pennsylvania Rule of Criminal Procedure 621(B) provides in full that "[a]t any time before the commencement of trial, a waiver of a jury trial or the judge's approval thereof may be withdrawn." This appeal presents the issue of whether Appellant's trial had commenced at the time he sought to withdraw his jury trial waiver and reinstate his right to a trial by jury, where both parties waived opening arguments, but no witnesses had yet been called. We hold that trial had commenced for purposes of Pa.R.Crim.P. 621(B) and, therefore, the trial court did not err in denying Appellant's request to withdraw his jury trial waiver. Accordingly, for the reasons set forth herein, we affirm.

The record discloses that on July 3, 2002, Detective John Newell of the Delaware County Drug Task Force was working in an undercover capacity near Chester High School in the City of Chester, when he met with Appellant and exchanged a large sum of money for one glass vial of phencyclidine (PCP).*fn1 When Detective Newell inquired as to the possibility of additional purchases, Appellant gave the detective his telephone number and told him to call when he wanted more drugs.

Throughout the balance of July, 2002, Detective Newell called Appellant four times to purchase PCP. After each call, Appellant met Detective Newell at or near where the first transaction took place and exchanged large sums of money for glass vials of PCP. Using these exchanges as the requisite probable cause, police obtained a search warrant and recovered from Appellant's residence a small amount of marijuana, bagging material, a scale, PCP residue, and cash. In due course, Appellant was charged with multiple counts of possession of a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia.*fn2

Appellant's case was set for trial several times between November of 2003 and May of 2005, and each time the matter was continued. On June 15, 2005, Appellant requested a bench trial and, through counsel, provided to the trial court a written jury trial waiver form, confirming that Appellant had reviewed the waiver form with his counsel, understood its contents, initialed it, and signed it in the presence of his attorney. Immediately thereafter, the trial court conducted an extensive on-the-record colloquy, and determined that Appellant's jury trial waiver was voluntary, knowing, and intelligent. The court thereafter inquired as follows:

TRIAL COURT: Okay. Are we ready to proceed to any opening statements?

DEFENSE COUNSEL: Yeah. I'll waive opening statement.

PROSECUTOR: Your Honor, we're waiving opening - - - counsel and I will waive opening statements. However, I expect to be starting a jury trial this afternoon. As a result, I don't have any witnesses here this afternoon. I'll be prepared to start with my first witness tomorrow morning.

TRIAL COURT: All right. That's fine. We'll pick it up in the morning then. . . .

DEFENSE COUNSEL: Thank you, ...


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