J-S06024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PARIS WASHINGTON                           :
                                               :
                       Appellant               :   No. 1412 EDA 2018

             Appeal from the Judgment of Sentence April 16, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005067-2016


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 16, 2019

        Appellant, Paris Washington, appeals from the Judgment of Sentence of

twenty-five months to sixty months of incarceration followed by twenty-four

months of probation, imposed on April 16, 2018, following a waiver trial at

which Appellant stipulated to facts sufficient to establish two counts each of

Aggravated Assault, Robbery, Conspiracy, and Possessing Instruments of

Crime.1 We affirm.

        Appellant stipulated to the following facts:

        At around 2 a.m. on February 21, 2016, two roommates, Aaron
        Guldin and Michael Kramer, invited people that they met at a bar
        back to their apartment at 148 Sumac Street. At around 3:30
        a.m., Mr. Guldin found two of the women in the group rifling
        through his dresser drawer. Mr. Guldin asked the group to leave
        after realizing that $300 in cash and $200 in Visa gift cards were
        missing from the drawer. Mr. Kramer heard a commotion and left
        his bedroom to join Mr. Guldin. Everyone left the apartment,
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1   See 18 Pa.C.S. §§ 2702(a)(1), 3701(a)(1)(iv), 903(a), 907(a), respectively.
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      except for [Appellant], [co-conspirator] Shamari Williams, and an
      unknown white male. Mr. Williams pointed a silver revolver at Mr.
      Guldin and Mr. Kramer and demanded everything they had.
      [Appellant] and the white male punched Mr. Kramer several times.
      The white male then struck Mr. Kramer with a piece of the wooden
      railing in the hallway steps. At some point, the Complainants were
      able to escape and contact police, while [the assailants] searched
      [the] apartment. Aside from the cash and gift cards, both
      Complainants’ cell phones were taken.

      On the same day of the robbery, [police] recovered five Budweiser
      bottles from the Complainants’ apartment. One of the fingerprints
      on the bottles matched [Appellant]. Both Complainants later
      identified [Appellant] in photo arrays.

Trial Ct. Pa.R.A.P. 1925(a) Op., filed 9/12/18, at 1-2; see also N.T., 4/16/18,

at 32-35.

      On the day scheduled for trial, prior to the selection of a jury, Appellant’s

counsel conducted a colloquy with Appellant, setting forth the terms of a plea

agreement including a negotiated sentence offered by the Commonwealth.

N.T. at 8-10. Initially, Appellant indicated that he had not decided whether to

accept the terms. Id. at 10. The court noted that trial would commence on

that day and, therefore, the time had come for Appellant to make a decision:

accept the offer or proceed to a jury trial. Id. at 11-12.

      Appellant decided to accept the offer. Id. at 12. However, the court

declined to accept Appellant’s plea, noting his apparent reluctance. Id. at 16.

Rather, the court suggested it would offer Appellant the opportunity to choose

between a waiver trial, with Appellant stipulating to facts in exchange for the

sentence offered by the Commonwealth, and a jury trial.            Id. at 16-17.

Following further consultation with counsel, as well as written and oral


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colloquies, the court determined that Appellant knowingly and voluntarily

waived his right to a jury trial. Id. at 18-32.

        Following the entry of stipulations on the record, the court found

Appellant guilty and proceeded directly to sentencing. The court sentenced

Appellant as indicated above and in accordance with the agreement reached

with the Commonwealth. Id. at 43-44; Sentencing Order, 4/16/18.

        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The court issued a responsive opinion.

        Appellant raises the following issue on appeal:

        [Whether] the lower court err[ed] in accepting [Appellant’s]
        waiver of his right to a jury trial and his stipulation to the
        Commonwealth’s evidence in light of his obvious reluctance to do
        so[.]

Appellant’s Br. at 3.2

        “The constitutional right to trial by jury, as with other constitutional

rights, will not lightly be deemed to have been waived. In fact, courts indulge

every    reasonable      presumption      against   waiver   of   such   fundamental




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2 Appellant has presented a single argument focused on the validity of his
waiver. See Appellant’s Br. at 9-10. He has not developed a separate
argument addressing his stipulation. To the extent Appellant purports to raise
his stipulation as a distinct issue, we deem it waived. Pa.R.A.P. 2119(a); see,
e.g., Commonwealth v. B.D.G., 959 A.2d 362, 371–72 (Pa. Super. 2008)
(“When an appellant fails to develop his issue in an argument and fails to cite
any legal authority, the issue is waived.”). We note further that Appellant
preserved no objection to the Commonwealth’s recitation of the facts. See
N.T. at 35 (Appellant stipulating to the facts presented).

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constitutional rights.” Commonwealth v. Stokes, 299 A.2d 272, 276 (Pa.

1973).

      Nevertheless, a criminal defendant may waive his right to a jury trial

and proceed to trial before a judge, provided his waiver is knowing and

voluntary.   Commonwealth v. Houck, 948 A.2d 780, 787 (Pa. 2008);

Pa.R.Crim.P. 620. The defendant “must be aware of the essential ingredients

inherent to a jury trial,” which are “1) that the jury be chosen from members

of the community (i.e., a jury of one's peers), 2) that the accused be allowed

to participate in the selection of the jury panel, and 3) that the verdict be

unanimous.” Houck, 948 A.2d at 787. On appeal, we review the totality of

the circumstances surrounding a defendant’s waiver to determine whether the

waiver was voluntary. Commonwealth v. Foreman, 797 A.2d 1005, 1015

(Pa. Super. 2002).

      Here, Appellant contends the court erred in accepting his waiver of his

right to a jury trial. Appellant’s Br. at 8. According to Appellant, the record

reveals that he remained uncertain how to proceed.            Id. at 9.    This

uncertainty, Appellant concludes, cannot overcome the presumption against

finding a knowing and intelligent waiver of the constitutional right to trial by

jury. Id. at 9-10 (citing in support Stokes, supra at 276).

      In Stokes, the trial court observed the defendant “to be rather

immature” and, therefore, directed counsel to fully explain the defendant’s

right to a jury trial in the presence of the defendant’s father. Stokes, supra

at 274. Following repeated explanations, counsel reported that the defendant

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had accepted his recommendation to proceed with a waiver trial, but in

response to questioning from the prosecutor, the defendant stated his

preference to proceed before a jury. Id. at 275. Upon further questioning,

the defendant eventually agreed to proceed with a waiver trial, and the court

accepted his waiver. Id. at 276.

       Upon review, our Supreme Court found the record “inadequate to show

a knowing and intelligent waiver[.]” Id. Rather, according to the Court, the

“vacillation of [the defendant] during the course of the colloquy more clearly

supports [a lack of understanding].” Id.3

       We have no such concern in this case. Following several discussions

with counsel, Appellant decided to proceed with the waiver trial. N.T. at 17,

18, 20-21. In contrast to Stokes, however, the record does not suggest any

lack of understanding by Appellant.            Rather, the record reveals a single

concern by Appellant that the Commonwealth sought a post-sentence

investigation (PSI) despite offering him an agreed-upon sentence. N.T. at 18-

21. According to Appellant, as he had already served the minimum sentence

to be imposed, he did not wish his potential release delayed several months

while the Commonwealth prepared a PSI report.              Id.   Upon hearing this

concern, the Commonwealth withdrew its request for a PSI, and Appellant

agreed to proceed with the waiver trial. Id.



____________________________________________


3 The Stokes Court also found counsel’s efforts to persuade the defendant—
in open court—to be coercive. Id. at 276 n.1.

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      Thereafter, Appellant executed a written waiver colloquy, demonstrating

his understanding of the rights he was waiving.     See id. at 25-27 (court

referencing written colloquy signed by Appellant and confirming with Appellant

that he discussed his rights with counsel). Further, the court conducted a

thorough, oral colloquy with Appellant, confirming the knowing and voluntary

nature of his waiver. Id. at 23-32.

      Based upon the totality of these circumstances, we discern no error in

the court’s decision to accept Appellant’s waiver as knowing and voluntary.

Foreman, supra at 1015. Accordingly, we affirm.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/19




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