Commonwealth v. DeGeorge , 506 Pa. 445 ( 1984 )

OPINION OF THE COURT

FLAHERTY, Justice.

The Commonwealth of Pennsylvania appeals from an order of the Superior Court reversing the judgment of sentence entered against appellee Michael DeGeorge and remanding for a new trial, having determined that appellee DeGeorge was denied effective assistance of counsel due to trial counsel’s failure to object to the trial court’s acceptance., of DeGeorge’s waiver of jury trial without conducting an on-the-record colloquy as prescribed by Rule of Criminal Procedure 1101.¹

Michael A. DeGeorge was convicted after a non-jury trial of possession with intent to deliver a controlled substance and criminal conspiracy. Post-verdict motions were filed and denied and judgment of sentence entered April 25, 1980, but subsequently reversed by Superior Court. We granted the Commonwealth’s petition for allowance of appeal and now reverse the order of the Superior Court and remand for proceedings consistent with this opinion.

DeGeorge was represented by the same counsel from preliminary stages through and including disposition of post-verdict motions. New appellate counsel’s first filing was of a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. There it was initially contended that the trial court erred in failing to conduct an on-the-record colloquy pursuant to Pa.R.Crim.P. 1101. The trial court opined that the issue was waived because not presented in pre- or post-trial motions. When the issue was presented to Superior Court, the allegation of error was coupled with the assertion that if the issue were held to have been waived, then trial counsel was ineffective in failing to pursue the error.

The Commonwealth argued that the issue was not properly preserved for appellate review and further argued that the issue was waived pursuant to the discretionary waiver of Pa.R.A.P. 1925 which states that failure to raise an issue in a Statement of Matters Complained of on Appeal results in waiver if the failure makes effective appellate review difficult. However, because the substantive issue was raised at the first available opportunity following the stewardship of counsel whose effectiveness is challenged, the Superior Court held the issue to have been adequately-presented for appellate review. We agree with Superior Court’s determination that the issue is properly presented for appellate review and thus proceed to the merits.

Rule 1101 of the Pennsylvania Rules of Criminal Procedure requires that the trial court determine, on the record, whether the defendant’s decision to waive a jury trial is knowingly and intelligently entered. Rule 1101 provides, in pertinent part:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the. case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record.

(Emphasis supplied.) While the record includes a written waiver of jury trial, signed by DeGeorge, no of-record colloquy appears from which it can be affirmatively established that DeGeorge’s waiver of jury was knowing and intelligent as required by Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). On the authority of this Court’s decision in Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), the Superior Court held that the failure of DeGeorge’s prior counsel to raise the issue of the jury waiver in post-verdict motions denied DeGeorge of effective assistance of counsel, since counsel “could not have had any reasonable basis for failing to object to an inadequate jury trial waiver.” 319 Pa.Super. at 252, 466 A.2d 140.

In Morin, it was held that reversal and remand for new trial was the only remedy in the case of an inadequate colloquy as prescribed by Rule 1101, a holding based upon the mandate of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). However, decisions subsequent to Morin, beginning with Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), have departed from the remedy mandated by Ingram, and do permit the consideration of circumstances outside the content of the of-record colloquy in determining the validity of a waiver, whether the waiver be of a jury only as in Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984), Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983), Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982), and Commonwealth v. Williams, supra, or whether the waiver be of one of the several rights waived by the entry of a guilty plea as in Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984), Commonwealth v. Gardner, 499 Pa. 263, 452 A.2d 1346 (1982), Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982), Commonwealth v. Shaffer, supra.

Thus, in Commonwealth v. Smith, supra, a case similar to the instant case, no colloquy as prescribed by Rule 1101 was of record and there existed only the written waiver document, signed by the defendant. However, in Smith, the defendant, in the waiver document, specifically acknowledged that the elements of a jury trial, selection of jurors from the community, requirement of unanimous verdict and participation in selection of the jury, Commonwealth v. Williams, supra, were explained and understood. It was therefore held that in the absence of an assertion on appeal that the document was invalid or that the waiver was not knowing and intelligent, the prima facie- validity of the defendant’s acknowledgment that the elements of a jury trial were explained and understood, was presumed. Accordingly, on this evidence that the defendant’s waiver of jury was knowing and intelligent, the claim that the defendant was denied effective assistance of counsel was rejected.

Here, the written waiver signed by DeGeorge, states merely that the defendant “pleads not guilty and ... waives a jury trial and elects to be tried by a judge without a jury”. Waiver of jury trial, May 3, 1978. In the absence of any assertion of record indicating that the waiver was knowing and intelligent, we are unable to determine whether DeGeorge has received effective assistance of counsel in waiving a jury trial. We have no indication of the extent to which counsel and client may have conferred on that which was waived, or what colloquy was conducted at the time the written waiver was executed.² However, hearing testimony taken in the case of claimed ineffective assistance of counsel has been relied upon to determine whether a jury waiver was knowing and intelligent, Commonwealth v. Carson, supra (waiver held valid), Commonwealth v. Gardner, supra (waiver held valid), Commonwealth v. Williams, supra (waiver held invalid). That the record now before this Court does not include such testimony because of the case's procedural stance should not result in a mandate of reversal and remand for new trial as ordered by Superior Court. Accordingly, the order of the Superior Court is reversed and the case is remanded to the trial court for evidentiary proceedings to determine whether the waiver of trial by jury was knowing and intelligent.

Reversed and remanded.

NIX, C.J., and HUTCHINSON and ZAPPALA, JJ., file dissenting opinions.

1 . Commonwealth v. DeGeorge, 319 Pa.Superior Ct. 244, 466 A.2d 140 (1983).

2 . Additionally, the reality of tactical decision making by counsel and client enters into the totality of the circumstances surrounding the voluntariness of waiver, Commonwealth v. Shaffer, supra. DeGeorge was convicted of possession with intent to deliver and criminal conspiracy on evidence that a substantial amount of cocaine was seized from his personal residence, the attempted suppression of which was unsuccessful, and upon the testimony of several undercover and police operatives. It cannot be ignored that the obvious defense strategy in this type of case is to seek suppression of the physical evidence establishing possession. The suppression motion having been denied, it is necessary to go to trial in order to secure appellate review of the suppression issues. No appellate review, of course, will be had if the defendant enters a plea of guilty. Obviously, to preserve the issues raised in suppression for appellate review, the defendant must undergo a criminal trial, jury or non-jury. Jury trial was not necessary to preserve the key issues in this case.