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decided: November 26, 1973.


Appeal from order of Superior Court, Oct. T., 1972, No. 423, affirming 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.

Maxine J. Stotland, James T. Ranney, and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Eagen concurs in the result. Mr. Chief Justice Jones dissents.

Author: Nix

[ 454 Pa. Page 369]

This case raises the interesting question of the effect of the failure of the trial judge to comply with Pa. R.

[ 454 Pa. Page 370]

Crim. P. 1101*fn1 providing in pertinent part for an on-the-record inquiry prior to the acceptance of a waiver of trial by jury.

After a non-jury trial the appellant was convicted of two indictments charging assault and battery with the intent to murder and a separate indictment charging burglary. Post-trial motions were argued and denied and a sentence of imprisonment of three and one-half to seven years was imposed. The Superior Court affirmed, per curiam, and this Court denied appellant's request for allocatur.

Subsequently appellant filed a petition under the Post Conviction Hearing Act*fn2 which was denied by the Court of Common Pleas without a hearing. After an appeal of this denial the Superior Court remanded the cause for a hearing on the allegations set forth in the petition. After the mandated hearing the court below again denied the requested relief and their order was affirmed by the Superior Court with two judges dissenting, Commonwealth v. Williams, 222 Pa. Superior Ct. 484, 294 A.2d 909 (1972). We granted allocatur and will now consider the issues presented.

Appellant urges that the failure of the court to establish on-the-record that the waiver of the right to trial by jury was knowingly and intelligently entered as required under Pa. R. Crim. P. 1101*fn3 vitiated the

[ 454 Pa. Page 371]

    entire proceedings and now entitles him to a new trial. The transcript of the proceedings reveal that a signed written waiver in conformity with the directions of Rule 1101 was filed and the record also contained a statement by counsel for the defense that "I will waive all the way." Appellant's contention that the trial judge did not comply with that portion of the rule requiring him to "ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record" is supported by the trial transcript and conceded by the Commonwealth.

The Superior Court justified its affirmance of the court below on the ground that the post-conviction hearing court had before it a signed waiver and had elicited testimony from appellant*fn4 during the hearing that would suggest that appellant was aware of the significance of the waiver at the time of trial.

The Commonwealth argues that we should not formulate a rule which would automatically vitiate the proceedings and allow the defendant to be rearraigned because of the lower court's failure to comply with the colloquy portion of Rule 1101. In the alternative they suggest that this omission can be satisfied if the Commonwealth

[ 454 Pa. Page 372]

    at a subsequent proceeding can establish that appellant at the time of trial possessed the requisite knowledge of the right to jury and that he did voluntarily waive his right.

Although we cannot presume a voluntary waiver of any constitutional right from a silent record, Boykin v. Alabama, 395 U.S. 238 (1969), Carnley v. Cochran, 369 U.S. 506 (1962); Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972), the issues here are whether a waiver can be found and upheld where it appears on the record in a subsequent hearing and the sufficiency of the subsequent colloquy in proving a knowing and intelligent waiver.

The appellant argues that we should make a per se prophylactic rule reversing convictions for failure to comply with Rule 1101,*fn5 despite the fact that a subsequent full and fair hearing proved the waiver of the constitutional right was knowing and intelligent. When we make rules for criminal proceedings we do so in order to protect the rights of the individual and therefore we expect strict compliance with those rules. However, a prophylactic exclusionary rule is applied only in extreme cases where all other attempts to secure compliance have proven unsuccessful. See generally Mapp v. Ohio, 367 U.S. 643, 651-652 (1961). In this area there has been no showing of widespread flagrant disregard to justify formulation of such a rule at this time.

Furthermore, where there is a subsequent proceeding in which the waiver is proven to be knowing and intelligent on the record such a prophylactic rule seems unnecessary since the purposes of the rule to ensure

[ 454 Pa. Page 373]

    the constitutionality of the waiver and our ability to review it, are satisfied. See Commonwealth v. Godfrey, 434 Pa. 532, 538, 254 A.2d 923 (1969) (Roberts, J., concurring).

Nevertheless, in the instant case we do agree with appellant that the record on its face, even considering the subsequent hearing, does not justify the finding of a knowing and intelligent waiver.*fn6 All that the record reveals is appellant's knowledge that he could have a trial in which twelve men decide his guilt or innocence. Nowhere on the record is there any indication that he knew the essential ingredients of a jury trial which are necessary to understand the significance of the right he was waiving. These essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one's peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel. In Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938) these rights were held to be a necessary and integral part of the Pennsylvania Constitutional provision requiring that "the trial by jury shall be as heretofore, and the right thereof remain inviolate," Pa. Const. art. 1, ยง 6.*fn7

In view of the failure of the record to establish that appellant had sufficient knowledge of the right which it is now contended he waived, we are unable to find that the waiver was either knowing or intelligent, Commonwealth v. Hooks, 450 Pa. 562, 301 A.2d 827

[ 454 Pa. Page 374]

(1973); Commonwealth v. Stokes, 450 Pa. 167, 299 A.2d 272 (1973); Commonwealth v. Garrett, 439 Pa. 58, 266 A.2d 82 (1970). The failure to comply with Rule 1101 resulted in the very harm that it was designed to prevent.

The order of the Superior Court affirming the judgment of sentence is reversed and a new trial is awarded.


Order of Superior Court reversed and new trial awarded.

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