Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1968, Nos. 1775, 1778 and 1779, in case of Commonwealth of Pennsylvania v. Edward Williams.
Dennis H. Eisman, Gerald A. Stein, and Needleman, Needleman, Tabb & Eisman, for appellant.
Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 222 Pa. Super. Page 485]
This is an appeal from the order of the Court of Common Pleas of Philadelphia denying post-conviction relief to the defendant, Edward Williams.
The defendant was charged with assault and battery, aggravated assault and battery with intent to murder, carrying a concealed deadly weapon, unlawfully carrying a firearm without a license, and burglary with intent to commit a felony. He entered a plea of not guilty to all charges, waived a trial by jury and was tried before Judge Samuel H. Rosenberg. He was found not guilty of carrying a concealed deadly weapon and unlawfully carrying a firearm without a license. He was found guilty of burglary with intent to commit a felony, assault and battery and aggravated assault and battery. Post-trial motions were denied. He was sentenced to not less than 3 1/2 years nor more than 7 years on the indictments of assault and battery and aggravated assault and battery with intent to commit murder. Sentence was suspended on the other charges.
The judgment of sentence was appealed to this Court and affirmed, per curiam. Petition to the Supreme Court of Pennsylvania for allocatur was denied.
[ 222 Pa. Super. Page 486]
A petition was then filed below for post-conviction relief which was denied without a hearing. On appeal to this Court, the case was remanded for hearing on the post-conviction petition. Hearing was held before Doty, J. below and the petition was denied. This appeal followed.
There is only one question that deserves serious consideration and discussion in this appeal. The defendant complains that he did not knowingly and intelligently waive his right to a jury trial.
The defendant relies on Rule 1101 of the Pennsylvania Rules of Criminal Procedure that holds that the judge shall ascertain from the defendant whether there is a knowing and intelligent waiver and such colloquy shall appear on the record. The only thing that appears in this record is the written waiver of trial by jury and the statement of counsel in the presence of the defendant and before the court that "I will waive all the way". At the hearing before Judge Doty, the following questions and answers appear in the transcript: "Q. Now at that time when you were called up to the bar of the court, you knew what a jury was, did you not? A. I never had a jury trial before. Q. I understand that, but you knew a jury consisted of twelve people who determined your guilt or innocence, is that correct? A. Correct. Q. You also heard the Judge explain to you that if you wanted, you could have that kind of a trial with twelve people to decide your guilt or innocence, didn't you hear the Judge say that to you? A. (No response). Q. Didn't you hear the Judge say that to you? A. Yes."
This explanation does not appear in the trial record. All that appears there is defendant's Attorney Shantz's statement "I will waive all the way" and the court's statement "Do you want to discuss it ...