Opinion
September 10, 1963.
September 30, 1963.
Criminal Law — Practice — New trial — Grant by lower court after final disposition of appeal by appellate court — Waiver of jury trial upon advice of competent counsel — Appealability of order.
1. A defendant who is represented by competent counsel must be presumed to act knowingly and advisedly in waiving a jury trial.
2. In this case, in which it appeared that defendant was convicted of pool selling and bookmaking by the court below sitting without a jury, the convictions were affirmed on appeal, and the appellate court directed that defendant be committed by the court below until he had complied with the sentences or any part of them which had not been performed at the time the appeals were made a supersedeas; that thereafter the court below granted a new trial upon defendant's request to withdraw his jury waiver; and that defendant, who had waived a jury at his trial upon advice of counsel, whose competency was not challenged, merely stated in his petition to withdraw the waiver that he had not been aware and had not been informed of his right to a jury trial; it was Held that the averments of defendant's petition raised no constitutional question and no other issue which was not determined by the appellate court's disposition of his appeal, and that the action of the court below was beyond its power and void, and should be vacated.
3. It was Held that the order of the court below granting a new trial was not interlocutory but purported to modify the appellate court's final disposition of the case, and that the Commonwealth had the right to appeal from such order.
Before ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ. (RHODES, P.J., absent).
Appeal, No. 142, Oct. T., 1963, from order of Court of Quarter Sessions of Philadelphia County, March T., 1960, Nos. 1869, 1870, 1871 and 1872, in case of Commonwealth of Pennsylvania v. Joseph J. Nardello. Order vacated.
Petition by defendant to withdraw waiver of jury and for new trial after final disposition of appeal.
Order entered granting new trial, opinion by BLANC, J. Commonwealth appealed.
Joseph M. Smith, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.
Benjamin R. Donolow, for appellee.
Argued September 10, 1963.
The defendant was convicted of pool selling and bookmaking by the court below sitting without a jury. He appealed to this court which, on January 16, 1962, affirmed the convictions and directed that he "appear in the court below at such time as he may there be called, and that he be by that court committed until he has complied with the sentences or any part of them which had not been performed at the time the appeals were made a supersedeas." Commonwealth v. Nardello, 197 Pa. Super. 165, 177 A.2d 166 (1962).
The court below did not observe this mandate. Instead, on November 8, 1962, it granted a new trial upon the defendant's request to withdraw his jury waiver. He had waived a jury at his trial upon advice of counsel then representing him, whose competency is not challenged. The Commonwealth has appealed from the order granting a new trial.
No question of the fairness of defendant's trial was raised and there was no indication in the petition for a new trial that he was prejudiced by the waiver. He merely stated in his petition to withdraw the waiver that he was not aware and not informed of his right to a jury trial. Since at the time of the waiver he was represented by competent counsel, it must be presumed that he acted knowingly and advisedly. The averments of the defendant's petition raise no constitutional question and no other issue which was not determined by our disposition of his appeal. The action of the court below would nullify that disposition. This is beyond that court's power. Its order is void and must be vacated.
The appellee's motion to quash the Commonwealth's appeal as interlocutory is without merit. The order appealed from is not interlocutory but purports to modify our final disposition of the case.
The order of the court below granting a new trial is vacated and defendant is directed to appear forthwith in that court which is directed to commit him until he has complied with the sentences or any part of them which had not been performed at the time the appeals to this court from his convictions were made a supersedeas.