Summary
In Commonwealth v. Henderson, 450 Pa. 122, 298 A.2d 891 (1973), the appellant asserted that his waiver of jury trial was not knowing and intelligent because the court failed to question him during the waiver colloquy about his claim of self-defense.
Summary of this case from Com. v. BoydOpinion
November 20, 1972.
January 19, 1973.
Criminal Law — Practice — Jury trial — Waiver — On-the-record colloquy between judge and defendant — Defendant allegedly hard of hearing — Failure of trial judge to refer to self-defense in his waiver colloquy with defendant — Trial judge, as the trier of fact.
1. On appeal by defendant following conviction of voluntary manslaughter by a judge, sitting without a jury, and judgment of sentence, in which it appeared that there was an extensive on-the-record colloquy between the trial judge and defendant, defendant's contention, that because he was hard of hearing he did not voluntarily and intelligently waive his right to a jury trial, was Held to be without merit.
2. Defendant's further contention, that the waiver colloquy was incomplete in that the trial judge failed to question him on his burden of proof of self-defense, was Held to be without merit.
3. A defendant's waiver of a jury trial does not affect the burden of proof on the subject of self-defense. [125]
4. Where the defendant waives a jury trial in a criminal prosecution the trial judge, as the jury, must find the facts and determine the credibility of the witnesses. [125]
5. The trial judge, as the trier of fact, is bound by the same legal principles that bind a jury on burden of proof. [125]
Argued November 20, 1972. Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 385, Jan. T., 1972, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, No. 777, in case of Commonwealth of Pennsylvania v. Robert Henderson. Judgment of sentence affirmed.
Indictment charging defendant with murder. Before DiNUBILE, J., without a jury.
Finding of guilty of voluntary manslaughter entered. Defendant's motions for new trial and in arrest of judgment denied and judgment of sentence entered. Defendant appealed.
Charles F. G. Smith, for appellant.
Robyn Greene, Assistant District Attorney, with her James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Appellant, Robert Henderson, was found guilty of voluntary manslaughter by a judge, sitting without a jury, and sentenced to a term of imprisonment of two to ten years.
The prosecution resulted from the fatal shooting of Elaine Webb on July 24, 1971, at approximately 2:00 a.m. in Philadelphia. From the trial testimony the lower court found that the deceased traveling south on Franklin Street had her passage blocked by the appellant's car. The appellant was not in his car but was watching a fist fight at the corner of the street. The deceased got out of her car and had an argument with the appellant. When the argument ended the deceased got into her car and began to back her car out of the street. At the same time, the appellant reached into his car for his gun and then approached the deceased in her car. He leaned into the deceased's car and said, "I'll put something to your head." The deceased then fired one shot first, fearing that the appellant was about to shoot her, or simultaneously with the first of four shots fired by the appellant.
After being fully apprised of his right to a jury trial, appellant elected to waive a jury trial. Appellant was at all times represented by counsel.
Although there was an extensive on-the-record colloquy between the trial judge and appellant, appellant argues that because he was hard of hearing he did not voluntarily and intelligently waive his right to a jury trial. In addition, appellant argues that the waiver colloquy was incomplete in that the trial judge failed to question him on his burden of proof of self-defense.
Having carefully reviewed the record, we find nothing to support appellant's contention that he was hard of hearing. The extensive colloquy was between the trial judge and the appellant himself. Appellant appropriately answered each of the questions and at no time indicated that he was having any trouble hearing or understanding the judge. Furthermore, appellant, during lengthy questioning while testifying in his own behalf, did not at any time indicate that he was unable to hear or understand the questions directed to him, and responded to each of the questions.
Also without merit is appellant's contention that the judge erred in failing to question appellant on self-defense during the colloquy. A defendant's waiver of a jury trial does not affect the burden of proof on the subject of self-defense. Where the defendant waives a jury trial in a criminal prosecution the trial judge, as the jury, must find the facts and determine the credibility of the witnesses. Commonwealth v. Lytes, 209 Pa. Super. 436, 228 A.2d 922 (1967). The trial judge, as the trier of fact, is bound by the same legal principles that bind a jury on burden of proof. Therefore, no error was committed when the trial judge omitted any reference to self-defense in his waiver colloquy. Appellant relinquished no rights regarding his defense of self-defense when he waived his right to a jury trial.
Judgment of sentence affirmed.