Commonwealth v. Tami
Commonwealth v. Tami
Opinion of the Court
Appellants, husband and wife, were found guilty by Honorable Robert J. Wolfe, President Judge, in a non-jury trial for violating the Drug, Device and Cosmetic Act of 1972
Initially, appellants contend the charges against them should be dismissed under Pa.R.Crim.P. 1100 because they were denied a speedy trial. The procedural history of the case is as follows. The complaints against appellants were filed August 25, 1976, which made the original run date under Rule 1100, February 21, 1977. They waived arraignment, but filed motions to dismiss the complaints on constitutional grounds. Arguments on these motions were scheduled for February 1, 1977. However, the cases were listed for a non-jury trial on January 28th. On January 21st, counsel for the appellants, Alan Ellis, Esq., in a letter addressed to Judge Wolfe, requested a postponement of the trial date, and that the hearing or argument on the motion to dismiss be rescheduled so that it could be heard “immediately prior to the non-jury trial”; and agreed to waive the provisions of Rule 1100. He also requested a rescheduling of the cases to a date after March 8th when he would have returned from his vacation. He also stated the Commonwealth had agreed. On January 28th, the Commonwealth petitioned the court for an extension of the permissible time for trial under Rule 1100(c) because of appellants’ pending petition to dismiss which was to be argued on February 1, 1977. No hearing was held on the Commonwealth’s petition, and it was granted ex parte on the day it was filed. An extension of 64 days from the original run date was granted making April 26, 1977 the last permissible date for trial. The trial commenced on March 21, 1977.
In their original appellate brief filed by new counsel, Paul Boas, Esq., appellants allege they had no notice of the
Appellants’ argument that their counsel’s waiver of Rule 1100 was improper is clearly without merit as demonstrated by the record. No hearing is necessary to show that he had the best interest of his clients in mind when he sought or agreed to a continuance so that his motion to dismiss could be argued before trial and at a time he would be available. Commonwealth v. Laudenslager, 259 Pa.Super. 118, 393 A.2d 745 (1978) presented a similar situation.
We conclude that the lower court did not err in dismissing appellants’ petition under Rule 1100.
We next proceed to a consideration of appellants’ argument that their waiver of a jury trial was not knowingly and intelligently made. This argument is based on the requirements of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), one of which is that the person, in waiving his or her right to a jury trial, must be informed that the jury would be chosen from members of the community and that he or she would be allowed to participate in the selection of the jury. Appellants do not question any other points required by Williams. Appellants argue this information was not given to them and therefore their waiver was invalid.
Our examination of the original record indicates that such information was not included on the colloquy given them by the court on January 17, when their waiver was made. The Commonwealth argues and the lower court concluded that this omission was supplied by the following circumstances:
Pa.R.Crim.P., 1101 requires that the Judge in accepting a waiver of jury trial “shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear of record.” Williams demands strict compliance with the provision that the colloquy advising accused of their constitutional rights, one of which is to participate in the selection of the jury panel, shall be self sustaining and appear of record. In that case, subsequent admissions by the accused that he fully understood his actions were held insufficient to satisfy the rule. Based on the same reasoning, we are constrained to conclude that neither prior advice, nor the circumstances and purpose of appellants presence in court on January 17th, are sufficient to supply the omissions in the colloquy before us. Also see Commonwealth v. Hooks, 450 Pa. 562, 301 A.2d 827 (1973) wherein it is stated “The intelligence of such a waiver may
In view of this conclusion, it will be unnecessary to pass on the other reasons asserted by appellants, all of which are related to the non-jury trial and the sentence imposed as a result thereof.
Judgments of sentence reversed and a new trial granted to each appellant.
. Act of April 14, 1972, P.L. 233, No. 64 § 13, as amended; 35 P.S. § 780-113 (Supp. 1976-77).
Dissenting Opinion
dissenting:
I dissent. I would affirm the judgments of the court below.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Bonnie Irvine TAMI and Terry Tami, Appellants
- Cited By
- 11 cases
- Status
- Published