Commonwealth v. Tolbert

369 A.2d 791, 246 Pa. Super. 23, 1977 Pa. Super. LEXIS 1583

• Court: Superior Court of Pennsylvania
• Decided: February 18, 1977
• Docket: 1344
• Status: Published

Opinions

PRICE, Judge:

On August 23, 1974, Maria De Naro was assaulted as she walked along a pathway in Penn Valley, Montgomery County. As a result of a description given by Maria to the police, appellant was arrested. Maria identified appellant as her assailant and appellant was subsequently indicted for simple assault¹ and indecent assault.² On April 30, 1975, appellant was found guilty of both counts by a jury. Because appellant was denied the right to be present during the selection of the jury, we must reverse the judgment of sentence of the lower court and grant appellant a new trial.

Appellant’s trial was originally scheduled to begin ón April 29, 1975. The court was convened sometime during the afternoon of that date, and, at that time, appellant’s trial counsel informed the judge that the trial could not proceed because appellant was not present. It is apparent from the record, and uncontested by the Commonwealth,³ that a person in the district attorney’s office had that very morning misinformed trial counsel that the district attorney’s office could not try the case on April 29. Therefore, counsel instructed appellant not to appear on that date, but to appear the following morning. Counsel explained this confusion and promised appellant’s appearance the following morning.

The trial judge was understandably irritated at the turn of events. As a gesture of appeasement, counsel offered to proceed with the jury selection despite appellant’s absence. This offer was accepted and a jury was selected at that time. On appeal, appellant contends that trial counsel’s decision to waive his presence during the selection of the jury was ineffective assistance of counsel, necessitating a new trial.⁴

In Commonwealth v. Graves, 238 Pa.Super. 452, 356 A.2d 813 (1976), this court was confronted with essentially the same issue. We reversed the defendant’s conviction and granted a new trial, holding that “counsel’s decision to select two jurors without the presence of his client cannot have any basis in reasonable trial strategy.” 238 Pa.Super. at 455, 356 A.2d at 814.

The right of a defendant to be present during the selection of the jury, along with his right to be present during every other phase of the trial, is protected by Pa.R.Crim.P. 1117(a). Unless the defendant is absent without cause, the right is absolute. Cf. Commonwealth v. Felton, 224 Pa.Super. 398, 307 A.2d 51 (1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L. Ed.2d 881 (1974). The right of the accused to participate in the selection of the jury panel is an essential ingredient of a jury trial under the Pennsylvania Constitution. Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

In this case, appellant was not absent without cause. Therefore, it was error to select the jury in his absence, with or without the consent of counsel. The judgment of sentence of the lower court is reversed and the case is remanded for a new trial.

JACOBS, J., files a dissenting opinion in which VAN der VOORT, J., joins.

1 . 18 Pa.C.S. § 2701(a).

2 . 18 Pa.C.S. § 3126.

3 . The Commonwealth has not filed a brief with this Court.

4 . This issue is properly before us. Where counsel on appeal is other than trial counsel, issues of ineffective assistance of trial counsel must be raised on direct appeal unless the grounds for the claim do not appear in the record. Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).