Commonwealth v. McDonald

BROSKY, Judge:

I agree with the result reached by Judge Wickersham in light of the corrected transcript.1 I believe, however, an additional comment would be appropriate about the trial court’s reasoning that a defendant who has had previous trial experience may be accorded fewer constitutional rights.

If we were to endorse a policy permitting flexible procedural requirements of a valid waiver, there could be no standard by which courts would know what rights to accord *538each defendant. Legitimizing the validity of an uninformed waiver on the basis of an assumed understanding by a defendant often may be correct, however, it may also represent a self-serving rationalization of the court. Accordingly, I am not satisfied with Judge Honeyman’s analysis found in his opinion of January 12, 1979 in which he stated:

In the colloquy he was not expressly told he had the right to participate in the jury’s selection. The defendant, at the time, was over 36 years of age and had a criminal record that had exposed him to the criminal courts at least 23 times, including jury trials. He was represented by an experienced criminal trial attorney who had, previous to trial, explained to defendant the alternatives of jury trial, non-jury trial and a plea of guilty. He was told, in the colloquy, that his own lawyer would select the jury with the Assistant District Attorney. From all of this, we conclude that he clearly had an understanding of the essential ingredients of a jury trial as required by Williams and Morin.

The requirements of the colloquy have been stated in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), and restated in Commonwealth v. Morin, 477 Pa. 80, 85, 383 A.2d 832, 834 (1978) where the Supreme Court said:

The colloquy must indicate, at a minimum, that the defendant knew the essential protections inherent in a jury trial a well as the consequences attendant upon a relinquishment of those safeguards. Among the “essential ingredients of a jury trial,” an understanding of which the accused must possess before a knowing and intelligent jury trial waiver can be made, are the requirements that the jury be composed of one’s peers chosen from members of the accused’s community, that the accused has the right to participate in the selection of the jury, and that every member of that jury must be convinced, beyond a reasonable doubt, of the accused’s guilt. Commonwealth v. Williams, [supra.]

(Emphasis added.)

The standard is a minimal requirement. No discretion is permitted the trial court. Thus, I strongly believe that *539under no circumstances can the practice undertaken by Judge Honeyman to legitimize the colloquy presented at trial as initially recorded be acceptable.

. Appellant’s supplemental Brief indicates the corrected testimony included in the colloquy informed McDonald that he had a personal role in jury selection.