Commonwealth v. Harris

Opinion by

Watkins, P.J.,

This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, by the defendant-appellant, Nathaniel Harris, after conviction in a non-jury trial of robbery.

Appellant, Nathaniel Harris, was charged with simple assault and battery and robbery.

The complaining witness, aged 72, testified that an assailant rushed up to him and said “Give me your money old man, give me your money”, while grabbing his throat and necktie. The tie broke and the complaining witness fell. While on the ground he was beaten on the face by assailant. A plainclothes officer in an unmarked car saw the “scuffle”. As the officer approached, the complaining witness fled. The officer identified himself to appellant and asked appellant “what was up”. Appellant allegedly replied “he was punching me”. The officer responded that it looked to him that it was appellant who was doing the punching. The officer asked appellant to wait while he investigated. Appellant refused. The complaining witness arrived on the scene and stated that appellant had robbed him. He positively identified appellant as his assailant.

After the trial before a judge, the Court found appellant not guilty of assault and battery and guilty of robbery.

There are two issues: First, the appellant argues that the colloquy before the jury trial waiver did not comply with Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). This matter was neither raised at trial nor at post trial motions. Therefore it is waived. Commonwealth v. Murray, 233 Pa. Superior Ct. 10, 334 A.2d 678 (1975).

A more serious contention is raised by the appellant that the court sitting without a jury is without power to render an inconsistent verdict, i.e., not guilty of assault and battery but guilty of robbery. Both sides concede that juries have the power to render such verdicts. Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971). The appellant argues, however, that in cases tried by a judge alone the court should not possess such power. The Commonwealth argues that judges have the same powers as juries under Pa. R. Crim. P. 1101 established for the purpose of providing for waiver of jury trials.

The United States Court of Appeals for the Second Circuit has ruled that a judge does not possess the power to render such verdicts. United States v. Maybury, 274 F.2d 899 (2d Cir. 1960). This rule has not been adopted in Pennsylvania and the federal ruling was not on constitutional grounds. The rule in Pennsylvania remains that a judge does possess the power to render such verdicts. Commonwealth v. Carter, supra. Commonwealth v. Reed, 458 Pa. 8, 326 A.2d 356 (1974). To deny judges that power would be to reduce the desirability of trial by a judge alone. We have consistently held that a decision by a judge without a jury has the same efficacy as a jury verdict.

Rule 1101 of the Pa. R. Crim. P. reads as follows: “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.”

Non-jury trials have worked very well in our system and have contributed to the reduction of case loads and the saving of considerable tax money. We should not weaken the non-jury trial system.

Judgment affirmed.