defendant not entitled to a new trial, notwithstanding defendant’s post-conviction relief claim that waiver of jury trial colloquy was defective where the trial court did not inform defendant that the jury would be chosen from members of the community or from his peers, since the record established that defendant fully understood the ingredients of a jury trial and made a knowing and intelligent waiver
How later courts described this case
- defendant not entitled to a new trial, notwithstanding defendant’s post-conviction relief claim that waiver of jury trial colloquy was defective where the trial court did not inform defendant that the jury would be chosen from members of the community or from his peers, since the record established that defendant fully understood the ingredients of a jury trial and made a knowing and intelligent waiver
- “The question was whether the waiver was knowing and intelligent, not whether certain talismanic questions were asked and answered.”
- “The question was whether *152 the waiver was knowing and intelligent, not whether certain talismanic questions were asked and answered.”
Written by the judges who cited it.
The opinion
NIX, Justice,
concurring.
I cannot accept the view the colloquy preceding the waiver of the jury was not defective. To the contrary, under the very clear language of Williams, a very important element has been omitted. Commonwealth v. Williams, 454 Pa. 368 , 312 A.2d 597 (1973); see also Commonwealth v. Smith, 498 Pa. 661 , 450 A.2d 973 (1982); Commonwealth v. Greene, 483 Pa. 195 , 394 A.2d 978 (1978); *373 Commonwealth v. Morin, 477 Pa. 80 , 383 A.2d 832 (1978); Commonwealth v. Boyd, 461 Pa. 17 , 334 A.2d 610 (1975). It is also true that, in determining the sufficiency of the colloquy, we are confined to considering only the record. See Commonwealth v. Ingram, 455 Pa. 198 , 316 A.2d 77 (1974); see also Commonwealth v. Morin, supra; Commonwealth v. Boyd, supra; Pa.R.Crim.P. 1101. Thus a proper examination in this case requires the conclusion that the colloquy was in fact defective.
However, the mere finding that the colloquy is defective does not answer the question as to whether counsel was ineffective in his representation for either failing to call attention to the omission at the time of the colloquy or pursuing the objection on appeal. Unlike the determination as to whether or not the colloquy is sufficient, the question of the adequacy of the stewardship of counsel does not require that we confine ourselves to that which appears on the record of the proceeding in question. Here we had testimony by trial counsel at the post-conviction proceeding to the effect that it was his practice always to discuss the jury trial ingredient at issue before, rather than during, the waiver colloquy, and that he had no question that there had been an intelligent waiver. Given this additional record evidence, I discern no basis for a finding of ineffectiveness. Accordingly, I concur in the majority’s mandate.