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