# Commonwealth v. Carson

> Supreme Court of Pennsylvania · December 30, 1983 · 503 Pa. 369

URL: https://www.frixlaw.com/law-library/cases/9709608

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth CARSON, A/K/A Reginald Brown, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 30, 1983
- **Citations:** 503 Pa. 369; 469 A.2d 599; 1983 Pa. LEXIS 788
- **Precedential status:** Published
- **Opinion:** Concurrence by Nix
- **Judges:** Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson, Zappala
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9709608

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9709608. Public record. Not legal advice.