Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1974, No. 209, in case of Commonwealth of Pennsylvania v. John Bullock.
John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Maxine J. Stotland, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First 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.
[ 232 Pa. Super. Page 319]
On April 22, 1974, appellant, following a waiver of jury trial, was convicted of burglary and criminal conspiracy. He was sentenced to eleven and one-half to twenty-three months imprisonment. In this appeal, appellant contends that the jury waiver colloquy was inadequate to establish that appellant knowingly and intelligently waived his right to a jury trial.*fn1
[ 232 Pa. Super. Page 320]
Rule 1101, Rules of Criminal Procedure, requires that a judge*fn2 ascertain from the defendant whether the waiver of the jury trial is a knowing and intelligent waiver. In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), Pa. R. Crim. P. 1101 was interpreted to require a jury waiver colloquy to include "the essential ingredients of a jury trial which are necessary to understand the significance of the right [the appellant] is 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." 454 Pa. at 373, 312 A.2d at 600. See also Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938). In the instant appeal, the waiver of jury trial is controlled by the Williams standards. See Commonwealth v. Lockhart, 227 Pa. Superior Ct. 503, 322 A.2d 707 (1974), where this court held that Williams was to be applied prospectively as of the day after November 26, 1973. See Johnson v. New Jersey, 384 U.S. 719 (1966) (Miranda only applies to trials begun the day after the decision).
The application of the Williams standard does not require the triggering of a "per se prophylactic rule",
[ 232 Pa. Super. Page 321]
because as the Williams court noted, "[i]n this [area of waiver of jury trials] there has been no showing of widespread flagrant disregard to justify formulation of [a per se prophylactic] rule at this time." 454 Pa. at 372, 312 A.2d at 600. Thus, although a review of the record indicated that appellant had not been informed at the time of the waiver of jury trial that he would be allowed to participate in the selection of a jury, Williams does not require a new trial to be granted.*fn3 However, Williams does require a remanding of the case for an evidentiary hearing where the Commonwealth has the burden of establishing the knowing and intelligent nature of appellant's waiver of jury trial.*fn4 Cf. Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972) (cases cited therein).
Judgment of sentence reversed and case remanded for an evidentiary hearing ...