Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1972, No. 1545, in case of Commonwealth of Pennsylvania v. David Carter.
Burton Spear, and Renninger, Spear & Kupits, for appellant.
David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 229 Pa. Super. Page 72]
Appellant, David Carter, raises three assignments of error on this direct appeal. He contends that (1) his waiver of a jury trial was improperly accepted, (2) reversible error was committed in that the trial judge knew of appellant's prior criminal record, and (3) he was deprived of effective assistance of counsel. As we agree with him that his waiver of a jury trial was not properly accepted, we will reverse the judgment of sentence and remand for a new trial on that basis. We need not consider appellant's additional allegations.
Appellant was tried by a judge without a jury, following a waiver colloquy. No written waiver appears on the record, and appellant did not object to the lack of a written waiver during trial. He was convicted of
[ 229 Pa. Super. Page 73]
aggravated robbery and of carrying firearms on a public street or place, and sentenced to a term of six to twenty years on the robbery conviction. Sentence was suspended as to the second conviction.
No post-trial motions were filed, as the trial judge sentenced appellant immediately after the conclusion of trial, despite appellant's request for a pre-sentence psychiatric report. This court, as a general rule, will not hear an issue on appeal where there was a failure to properly preserve the matter for appeal in the court below. Commonwealth v. Whiting, 205 Pa. Superior Ct. 92, 208 A.2d 1 (1965); Commonwealth v. Robinson, 317 Pa. 321, 176 A. 908 (1935). But where the error which was not objected to at trial is basic and fundamental, it will be considered on appeal. Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968). The noncompliance of the court below with Rule 1101 is such a fundamental error. Commonwealth v. Watts, 216 Pa. Superior Ct. 300, 264 A.2d 439 (1970).
Rule 1101 of the Pennsylvania Rules of Criminal Procedure permits a defendant to waive a jury trial with the consent of the court, the Commonwealth's attorney, and defendant's own attorney, if the trial judge is satisfied through a colloquy on the record that such waiver is knowing and intelligent. The waiver must be in writing and made part of the record,*fn1 in the form specifically set forth in the rule. This rule became effective on August 1, 1968, as amended, January 21,
[ 229 Pa. Super. Page 741969]
, and suspended the Act of June 11, 1935, P. L. 319, No. 141, § 1, ...