Com. v. Smith, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY DAVID SMITH :
:
Appellant : No. 2359 EDA 2018
Appeal from the Judgment of Sentence Entered June 28, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002353-2016
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: Filed: February 7, 2020
Ricky David Smith (Appellant) appeals from the judgment of sentence
imposed after the trial court found him guilty of theft, receiving stolen
property, and unauthorized use of an automobile.1 Upon review, we affirm.
On January 2, 2018, Appellant appeared before the trial court and
waived his right to a jury trial. That same day, the trial court convicted him
of the above crimes. The court deferred sentencing until June 28, 2018, when
it sentenced Appellant to 11½ to 23 months of incarceration. On July 9, 2018,
Appellant filed a post-sentence motion alleging that his sentence was
excessive. The trial court denied the motion on July 11, 2018, and Appellant
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3921, 3925, and 3928.
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filed this timely appeal. The trial court and Appellant have complied with
Pennsylvania Rule of Appellate Procedure 1925.
In his sole issue, Appellant claims that his waiver of his right to a jury
trial was not knowing or voluntary, “in violation of Pa.Crim.P. 620 because he
denied any mental health history or commitments despite an established
record of such commitments, expressed confusion regarding the proceedings,
and only assented after responding to leading questions”. Appellant’s Brief at
3. Appellant argues, “after much cajoling, and denying an obvious and
recorded mental health history . . . [he] continued to express confusion,” such
that his “waiver was coerced.” Id. at 10-11.
In response, the Commonwealth argues that Appellant voluntarily
waived his right to a jury trial because he agreed that he understood the
elements of a jury trial and wished to forego them. Commonwealth Brief at
4. The Commonwealth emphasizes that Appellant reviewed the written waiver
from with his attorney, read it during the colloquy, and agreed that he signed
it voluntarily. Thus, any misunderstanding Appellant “may have allegedly had
about his prior involuntary commitment did not extend to his understanding
of the implications of his waiver.” Id. We agree.
The relevant Rule reads:
In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval by a judge of
the court in which the case is pending, and elect to have the judge
try the case 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. The waiver shall be in
writing, made a part of the record, and signed by the defendant,
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the attorney for the Commonwealth, the judge, and the
defendant’s attorney as a witness.
Pa.R.Crim.P. 620.
Our Supreme Court has stated:
[C]riminal defendants have a constitutionally guaranteed right to
a trial by jury. U.S. Const. amend. VI. In all cases, a defendant
may waive a jury trial with approval by a judge of the court in
which the case is pending. Pa.R.Crim.P. 620. To be valid, it is well
settled that a jury waiver must be knowing and voluntary, and the
accused must be aware of the essential ingredients inherent to a
jury trial.
Commonwealth v. Houck, 948 A.2d 780, 787 (Pa. 2008) (citations omitted).
More recently, this Court stated:
The essential elements of a jury waiver, though important and
necessary to an appreciation of the right, are nevertheless simple
to state and easy to understand. “The...essential ingredients,
basic to the concept of a jury trial, are the requirements that the
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.”
Notwithstanding the Rule’s reference to a “colloquy on the record,”
the use of a written jury trial waiver form has been deemed
sufficient in the absence of an oral jury trial waiver colloquy.
A waiver colloquy is a procedural device; it is not a constitutional
end or a constitutional “right.” Citizens can waive their
fundamental rights in the absence of a colloquy; indeed, waivers
can occur by conduct or by implication, as in the case of a criminal
trial conducted in absentia after the defendant fails to appear.
Commonwealth v. Smith, 81 A.3d 1168, 1175–76 (Pa. Super. 2018)
(citation omitted), appeal denied, 193 A.3d 344 (Pa. 2018).
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Here, the record contains Appellant’s written waiver, signed by
Appellant, his attorney, the Commonwealth and the trial court. Waiver,
1/2/18. The waiver states:
AND NOW, this 2nd day of January, 2018, comes [Appellant]
and pleads not guilty, and with the consent of his attorney, and
the Commonwealth and the approval of the Court, waives a jury
trial and elects to be tried by a judge without a jury, fully
understanding that if he were tried by a jury:
(a) The jury would be chosen from members of the
community thereby producing a jury of his
peers;
(b) Any verdict rendered by a jury must be
unanimous, that is, all twelve jurors must agree
before they can return a verdict of guilty; and
(c) He would be permitted to participate in the
selection of the jury.
Id.
In addition, our review of the notes of testimony, consistent with this
Court’s decision in Commonwealth v. Williams, 456 A.2d 1047 (Pa. Super.
1983), leads us to conclude that Appellant’s waiver was valid. In Williams,
we disagreed with the appellant’s claim that “his limited educational
background, and his prior placement in a mental health center for observation
combined with certain incongruous answers and bizarre statements by
appellant during the waiver colloquy demonstrate that his waiver was not
knowing and intelligent.” Id. at 1052. This Court recited the exchange that
occurred before the trial court in Williams:
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Q. Do you have any history of any mental instability, or anything
like that? Have you ever been a patient in a mental health center
or a mental hospital?
A. Yeah, just-I was just sent up for observation; that’s all.
Q. But you’ve never been a patient? Have you ever been a patient
of a psychiatrist or mental doctor, or anything like that?
A. (No response.)
[COUNSEL]: Were you in for observation, and then released?
THE DEFENDANT: Yeah.
[COUNSEL]: Your Honor, he was in for observation, and then
released.
THE COURT: Then released?
[COUNSEL]: Yes, sir.
(By the Court:)
Q. So you were never a patient?
A. (No response.)
[COUNSEL]: You were never a permanent patient?
(The defendant did not respond.)
(By the Court:)
Q. You were never in a mental hospital or a mental health center?
A. No, sir.
Q. You were never a patient of a mental health doctor or a
psychiatrist of a psychologist, as I understand it; is that correct?
A. Yes, sir.
Q. Now, are you quite certain that this is what you want to do, Mr.
Williams?
A. Yes, sir.
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Q. You realize that you’re giving up very valuable rights by waiving
your right to a jury trial; there’s no question about that, you fully
understand that?
A. Yes, sir.
Q. And are you certain you want to do that?
A. Yes, sir.
THE COURT: Do either counsel want to ask any questions?
[COUNSEL]: Your Honor, I believe the defendant has a question.
THE COURT: Yes.
THE DEFENDANT: I just wanted to say this: regardless of whoever
makes the decision, the devil’s decision is the devil’s decision, the
lord’s is the lord’s. That’s what I want to say.
THE COURT: I couldn’t quite understand you.
THE DEFENDANT: Whatever decision the lord makes is made,
whatever decision the devil makes is made; so I got nothing
further to say.
THE COURT: I don’t know how that affects this. You’ve got to
understand that the decision in the case, if you’re tried by a jury,
is made by the jury; if you’re tried by a judge, the judge makes
the decision, whether you’re guilty or innocent; not the lord, or
anybody else. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Is there anything that you don’t understand, that
was said here today by anybody?
THE DEFENDANT: I fully understand everything.
Williams, 456 A.2d at 1052–53.
On appeal, this Court found that the appellant’s answers were “not
inconsistent and do not demonstrate confusion.” Id. at 1053. Significantly,
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we stated, “if there was any confusion on appellant’s part, that confusion did
not relate to his understanding of his right to a jury trial, the essential
elements of a jury trial, or his decision to waive a jury trial.” Id. We
explained:
While in isolation these statements may appear bizarre, the record
as a whole demonstrates that appellant’s waiver was knowingly
and intelligently made. Immediately after these statements, the
Trial Court informed appellant that the decision in this case would
be made either by a jury or a judge and appellant replied that he
understood.
Id.
Consistent with the foregoing, our review of the record supports a
finding that Appellant’s waiver was knowing and intelligent. See generally,
N.T., 1/2/18, at 1-17. To the extent there may have been “confusion” because
Appellant did not answer questions about his mental health honestly, those
answers “did not relate to his understanding of his right to a jury trial, the
essential elements of a jury trial, or his decision to waive a jury trial.”
Williams, 456 A.2d at 1053. To the contrary, the record as a whole indicates
that Appellant’s waiver was valid. Appellant’s attorney stated, “I believe he
wants to do a waiver trial. We’ll know for sure when Your Honor conducts the
colloquy.” Id. at 3. The testimony proceeded:
THE COURT: . . . I understand you want a judge trial
instead of a jury trial. Is that correct?
APPELLANT: Yes, sir.
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THE COURT: All right. So I’m going to ask you some
questions so we can make this official. All right?
APPELLANT: Yes.
Id. at 4.
The trial court then asked Appellant whether he had been treated for
mental illness, hospitalized for mental illness, hospitalized against his will, or
was under the influence of prescription medication, drugs or alcohol; Appellant
responded “No” to all of those questions. Id. at 5-6. The court then asked
Appellant about his written waiver colloquy; Appellant testified that he read
it, reviewed it with his attorney, and signed it. Id. at 9. The court verbally
confirmed with Appellant that by waiving his right to a jury, he would give up
his participation in the selection of a jury, chosen from “twelve citizens from
the City of Philadelphia,” and the requirement that a guilty verdict be
unanimous. Id. at 9-11.
We disagree with Appellant’s contention that he “expressed confusion,”
and “only when asked leading questions did [Appellant’s] answers
demonstrate an apparent lucidity and full understanding.” Appellant’s Brief at
12. For example, toward the end of the waiver colloquy, Appellant responded
to the trial court’s question:
Q. I’m just saying to you, no one’s forcing you to do this?
A. No, I’m not forced at all.
N.T., 1/2/18, at 14.
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The trial court explained:
. . . . Appellant’s “total conduct” in answering “yes” to the court’s
questions regarding his understanding of the waiver, satisfied the
court that Appellant had made a knowing and intelligent waiver of
his right to a jury trial. Not once did Appellant tell the court that
he did not agree with the waiver once it was fully explained to
him. Given Appellant’s insistence that he understood the meaning
of his waiver, the court exercised appropriate discretion in
determining that Appellant’s waiver was sufficient.
Further, the court appropriately followed Rule 620 of the
Commonwealth’s rules of criminal procedure by exercising its
discretion in approving Appellant’s waiver. Appellant was not
subject to a bench trial against his will. Appellant made it very
clear that he wanted the court to hear his case. NT. 01/02/18 at
11.
Trial Court Opinion, 4/17/19, at 7-8.
In sum, we agree that Appellant’s waiver was knowing and voluntary.
Throughout his colloquy, Appellant stated that he understood that he was
waiving a jury trial and wanted a bench trial. See, e.g., N.T., 1/2/18, at 4,
14, 17. In addition, the parties executed a written waiver, Appellant’s counsel
expressed Appellant’s desire for a bench trial, and consistent with his counsel’s
representation, Appellant participated in a verbal colloquy where he was
advised of the “essential ingredients” of a jury trial, i.e., that the jury be
comprised of twelve peers, that the verdict be unanimous, and that a
defendant be allowed to participate in jury selection. See Houck, 948 A.2d
at 787; see also Smith, 81 A.3d at 1175.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/20
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