Commonwealth v. Greene

394 A.2d 978, 483 Pa. 195, 1978 Pa. LEXIS 1155

• Court: Supreme Court of Pennsylvania
• Decided: November 18, 1978
• Docket: 180
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM:

Appellant, Clarence Greene, a/k/a Sonny Greene, was tried by a judge sitting without a jury in connection with the robbery and homicide of Catherine Johnson in McKeesport, Allegheny County, Pennsylvania. Appellant was adjudged guilty of murder of the second degree and robbery.¹ Post-verdict motions were denied. Appellant was sentenced to life imprisonment for his conviction of murder of the second degree. The judgment of sentence for the robbery conviction was suspended. Appellant filed a direct appeal to this court from the judgment of sentence imposed for the murder of the second degree conviction. He appealed the judgment of sentence imposed on his robbery conviction to Superior Court, which certified that appeal to our court for disposition.

Appellant argues that he did not knowingly waive his right to a jury trial. In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), we held that three essential elements must be included in every jury waiver colloquy. As we stated:

“ . . . These essential ingredients, basic to the concept of a jury trial, are the requirements that a 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, 600, 312 A.2d at 600.

See Pa.R.Crim.P. 1101.

In the instant case, appellant was never informed by the trial court that the verdict had to be unanimous. As the trial court ignored the clear mandate of both Pa.R.Crim.P. 1101 and Williams, supra, a new trial is required.²

Judgments of sentence reversed and a new trial ordered.

POMEROY, J., filed a dissenting opinion in which LARSEN, J., joins. EAGEN, C. J., dissents.

1 . Appellant was originally tried by a judge sitting with a jury in January, 1975. On direct appeal to this court, the judgments of sentence were reversed. The case was remanded for a new trial. Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976). See Greene, supra, for the relevant facts concerning the instant crimes.

2 . Because of our disposition of this issue, we need not reach appellant’s remaining allegations of error, which include that:

“1. The trial court erred in admitting a deceased prosecution witness’ testimony from the first trial when that trial court did not permit defense counsel to question the prosecution witness concerning his alleged selling of drugs to appellant without a prescription.

“2. The trial court’s extensive questioning of the Commonwealth’s witness was unnecessary and prejudicial to the defense.”