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COMMONWEALTH PENNSYLVANIA v. RODNEY KNIGHT (07/12/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RODNEY KNIGHT, APPELLANT

No. 1064 October Term 1977, Appeal from Judgment of Sentence imposed on January 24, 1977, by the Hon. Perry Patterson of the Court of Common Pleas, Crim. Div., of Potter County, Nos. 25 and 26 of 1976.

COUNSEL

Peter T. Campana, Williamsport, for appellant.

Harold B. Fink, Jr., District Attorney, Coudersport, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs solely on the grounds that there was no written waiver of jury trial as required by Pa.R.Crim.P. 1101. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 256 Pa. Super. Page 435]

Appellant was found guilty by a judge sitting without a jury. On appeal he contends that trial counsel was ineffective in failing to assign in post-verdict motions the issue of the absence of a jury-trial waiver conforming to the requirements of Pa.R.Crim.P. 1101.

Rule 1101 requires a written waiver of jury trial, and an on-the-record colloquy establishing that the defendant knows the elements of his right to a jury trial. The record in this case contains neither. Therefore there is arguable merit, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), to the claim that this issue should have been raised in post-verdict motions. Furthermore, under the recent case of

[ 256 Pa. Super. Page 436]

Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), we must conclude on the state of the record before us in this case that trial counsel could have had no reasonable basis for his decision not to raise the issue in post-verdict motions.

Judgment of sentence reversed, the case remanded for new trial.*fn*


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