Commonwealth v. Duncan

Superior Court of Pennsylvania

Commonwealth v. Duncan

403 A.2d 119, 266 Pa. Super. 112, 1979 Pa. Super. LEXIS 2688

CourtSuperior Court of Pennsylvania

DecidedMay 16, 1979

Docket27

StatusPublished

Cited by5 cases

This text of 403 A.2d 119 (Commonwealth v. Duncan) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Duncan, 403 A.2d 119, 266 Pa. Super. 112, 1979 Pa. Super. LEXIS 2688 (Pa. Ct. App. 1979).

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HOFFMAN, Judge:

During jury selection at his trial on kidnapping, rape and conspiracy charges, appellant indicated a desire to waive a jury trial. The request was granted, but appellant was never informed of his right to a unanimous jury verdict. After he was found guilty, appellant filed a post-verdict motion for a new trial because of this deficiency in the waiver colloquy. The court ordered an evidentiary hearing to determine whether appellant’s waiver of his right to a jury trial was knowing and intelligent, Pa.R.Crim.P. 1101. Appellant did not object to this procedure. After the hearing, the court found that appellant knew of his right to a unanimous jury verdict when he made his waiver, and, consequently, denied the motion for a new trial. This appeal followed.

Although the waiver colloquy of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) was not originally proposed as a per se rule, id., 454 Pa. at 372, 312 A.2d at 599, it now appears that failure by the trial court to advise the defendant of the unanimity rule automatically mandates a new trial. Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978). This is so even where, as here, defendant does not object to the colloquy at the time, proceeds through trial, and raises the issue only after a guilty verdict has been returned. See id., 483 Pa. at 198-99, 394 A.2d 979-80 (POMEROY, J., dissenting). It makes no difference that it can be reliably determined that at the time of the waiver, defendant knew in fact of the rights he was waiving, as here. See id., 483 Pa. at 196 n. 1, 394 A.2d at 979 n. 1. (POMEROY, J., dissenting). See also Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978) (where counsel is ineffective for not raising this issue, remand not for evidentiary hearing, but for new trial).

[114]*114Although we feel that Pa.R.Crim.P. 1101 and Williams, supra, have been complied with in this case, we are constrained to hold that Greene and Morin, supra, require a new trial.

Reversed and remanded for a new trial.

WIEAND, J., files a concurring opinion.

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HOFFMAN, Judge:

During jury selection at his trial on kidnapping, rape and conspiracy charges, appellant indicated a desire to waive a jury trial. The request was granted, but appellant was never informed of his right to a unanimous jury verdict. After he was found guilty, appellant filed a post-verdict motion for a new trial because of this deficiency in the waiver colloquy. The court ordered an evidentiary hearing to determine whether appellant’s waiver of his right to a jury trial was knowing and intelligent, Pa.R.Crim.P. 1101. Appellant did not object to this procedure. After the hearing, the court found that appellant knew of his right to a unanimous jury verdict when he made his waiver, and, consequently, denied the motion for a new trial. This appeal followed.

Although the waiver colloquy of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) was not originally proposed as a per se rule, id., 454 Pa. at 372, 312 A.2d at 599, it now appears that failure by the trial court to advise the defendant of the unanimity rule automatically mandates a new trial. Commonwealth v. Greene, 483 Pa. 195, 394 A.2d 978 (1978). This is so even where, as here, defendant does not object to the colloquy at the time, proceeds through trial, and raises the issue only after a guilty verdict has been returned. See id., 483 Pa. at 198-99, 394 A.2d 979-80 (POMEROY, J., dissenting). It makes no difference that it can be reliably determined that at the time of the waiver, defendant knew in fact of the rights he was waiving, as here. See id., 483 Pa. at 196 n. 1, 394 A.2d at 979 n. 1. (POMEROY, J., dissenting). See also Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978) (where counsel is ineffective for not raising this issue, remand not for evidentiary hearing, but for new trial).

[114]*114Although we feel that Pa.R.Crim.P. 1101 and Williams, supra, have been complied with in this case, we are constrained to hold that Greene and Morin, supra, require a new trial.

Reversed and remanded for a new trial.

WIEAND, J., files a concurring opinion.

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403 A.2d 119, 266 Pa. Super. 112, 1979 Pa. Super. LEXIS 2688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-duncan-pasuperct-1979.

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