Summary
concluding that the defendant was not "absent without cause" where "he was not present ... because his attorney advised him that he could leave"
Summary of this case from Com. v. GrilliOpinion
November 20, 1975.
February 2, 1976.
Criminal Law — Practice — Jury selection — Defendant not present when two jurors were selected — Pa. R. Crim. P. 1117(a) — New trial required.
1. In this case, a jury was selected. The defendant's counsel told the defendant that he could leave for the day and that the trial would start early the next day. After the defendant left, two jurors who had been selected asked to be excused, and the defendant's counsel agreed to select replacement jurors in the defendant's absence. It was Held that the court below erred in allowing two jury members to be selected in the absence of the defendant, and a new trial was ordered.
2. Absent a voluntary waiver, a defendant is entitled to be present when the jury is impanelled.
3. Pa. R. Crim. P. 1117(a) provides in part that: "The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury. . . ." Criminal Law — Practice — Direct appeal — Alleged ineffective assistance of counsel — Conduct by defendant's counsel having no reasonable basis designed to effectuate his client's interests — Claim of ineffective assistance of counsel raised on direct appeal — Defendant's appellate counsel not representing him at trial.
4. Defendant's contention that the selection of jurors in his absence constituted ineffective assistance of counsel, was Held to be meritorious.
5. Where the defendant's appellate counsel did not represent him at trial, the claim of ineffective assistance of counsel can be raised on direct appeal if the grounds upon which the claim is based appear in the trial record.
6. In order to be deemed constitutionally effective, counsel's choice, in light of the available alternatives, must have some reasonable basis designed to effectuate the interests of his client.
JACOBS, J., dissented.
Argued November 20, 1975.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 375, April T., 1975, from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1973, No. 7471A, in case of Commonwealth of Pennsylvania v. Richard Graves, Tyrone Norman, alias Norman Tyrone. Judgment of sentence reversed and case remanded for new trial.
Indictment charging defendant with robbery with a weapon, theft, theft by receiving stolen goods, felonious restraint and false imprisonment. Before DAUER, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
Mark S. Frank, for appellant.
Charles W. Johns, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Appellant contends that his trial attorney's stipulation to the selection of two jurors in his absence constituted ineffective assistance of counsel.
Appellant's present attorney did not represent him at trial. Thus, his ineffectiveness claim can be raised on direct appeal if the grounds upon which the claim is based appear in the trial record. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). The facts constituting the alleged ineffectiveness are set forth in an affidavit submitted by the attorney who represented appellant-Norman at trial:
"On the day that trial was scheduled for Richard Graves and Tyrone Norman, whom I represented, . . . defendants and counsel selected jurors together. At approximately 3:30 p.m. the twelfth juror was selected. I asked . . . the Chief Court Crier, whether our trial would start that day and he informed us that we would not start until the next morning. Counsel for Richard Graves and I told both defendants together that they could leave for the day and we would start early the next day.
"After defendants left, two jurors that had been selected asked to be excused since they were part of a holdover panel and our trial might take some time. Counsel for Richard Graves and I, as counsel for Tyrone Norman, stipulated that we would pick replacement jurors in defendants ['] absence. The defendants were not aware of the two new jurors until trial started the next day."
Absent a voluntary waiver, a defendant is entitled to be present when the jury is impanelled: ". . . the courts have held that a defendant must be present during the jury selection process, Hopt v. Utah, 110 U.S. 574 (1884), Lewis v. United States, [ 146 U.S. 370 (1892)] . . ." Commonwealth v. Felton, 224 Pa. Super. 398, 402, 307 A.2d 51, 53 (1973), cert. denied, 415 U.S. 984. See also Commonwealth v. Doctor, 228 Pa. Super. 304, 323 A.2d 790 (1974). In Pennsylvania, this doctrine has been codified as a rule of criminal procedure: "The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict." Rule 1117(a), Pa. R. Crim. P. (Emphasis added). It is apparent from the affidavit submitted by trial counsel that appellant was not "absent without cause"; he was not present when the two additional jurors were selected because his attorney advised him that he could leave. Appellant alleges that the selection of these jurors in his absence constituted ineffective assistance of counsel. We agree and, therefore, reverse the judgment of sentence.
In order to be deemed constitutionally effective, counsel's choice, in light of the available alternatives, must have some reasonable basis designed to effectuate the interests of his client. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In the instant case, counsel's decision to select two jurors without the presence of his client cannot have any basis in reasonable trial strategy. The simple alternative was to complete the jury selection the following morning; there was nothing to be gained by denying appellants the right to participate in the selection of the jurors.
Judgment of sentence reversed and case remanded for a new trial.
JACOBS, J., dissents.