
    Commonwealth v. Williams, Appellant.
    Submitted June 12, 1972.
    Before Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ.
    
      September 15, 1972:
    
      Dennis II. Eisman, Gerald A. Stein, and Needleman, Needleman, Tabl> & Eisman, for appellant.
    
      Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
   Opinion by

Watkins, J.,

This is an appeal from the order of the Court of Common Pleas of Philadelphia denying post-conviction relief to the defendant, Edward Williams.

The defendant was charged with assault and battery, aggravated assault and battery with intent to murder, carrying a concealed deadly weapon, unlawfully carrying a firearm without a license, and burglary with intent to commit a felony. He entered a plea of not guilty to all charges, waived a trial by jury and was tried before Judge Samuel H. Rosenberg. He was found not guilty of carrying a concealed deadly weapon and unlawfully carrying a firearm without a license. He was found guilty of burglary with intent to commit a felony, assault and battery and aggravated assault and battery. Post-trial motions were denied. He was sentenced to not less than 3 y2 years nor more than 7 years on the indictments of assault and battery and aggravated assault and battery with intent to commit murder. Sentence was suspended on the other charges.

The judgment of sentence was appealed to this Court and affirmed, per curiam. Petition to the Supreme Court of Pennsylvania for allocatur was denied. A petition was then filed below for post-conviction relief which was denied without a hearing. On appeal to this Court, the case was remanded for hearing on the post-conviction petition. Hearing was held before Doty, J. below and the petition was denied. This appeal followed.

There is only one question that deserves serious consideration and discussion in this appeal. The defendant complains that he did not knowingly and intelligently waive his right to a jury trial.

The defendant relies on Rule 1101 of the Pennsylvania Rules of Criminal Procedure that holds that the judge shall ascertain from the defendant whether there is a knowing and intelligent waiver and such colloquy shall appear on the record. The only thing that appears in this record is the written waiver of trial by jury and the statement of counsel in the presence of the defendant and before the court that “I will waive all the way”. At the hearing before Judge Doty, the following questions and answers appear in the transcript : “Q. Now at that time when you were called up to the bar of the court, you knew what a jury was, did you not? A. I never had a jury trial before. Q. I understand that, but you knew a jury consisted of twelve people who determined your guilt or innocence, is that correct? A. Correct. Q. You also heard the Judge explain to you that if you wanted, you could have that kind of a trial with twelve people to decide your guilt or innocence, didn’t you hear the Judge say that to you? A. (No response). Q. Didn’t you hear the Judge say that to you? A. Yes.”

This explanation does not appear in the trial record. All that appears there is defendant’s Attorney Shantz’s statement “I will waive all the way” and the court’s statement “Do you want to discuss it further?” and the answer “No”. The required waiver form was signed by the defendant and the record shows prior experience in the courts having been sentenced to 4 to 10 years for homicide.

In Commonwealth v. Williams, 217 Pa. Superior Ct. 285, 269 A. 2d 143 (1970), this Court affirmed in a 5-2 per curiam order the judgment of sentence below. In that case, the waiver had been signed and the only question appearing in the transcript was as follows: “Q. You knew you had a right to a jury trial? A. Yes.” Petition for allocature to the Supreme Court was refused.

The defendant relies heavily on Commonwealth v. Copeland, 212 Pa. Superior Ct. 195, 240 A. 2d 391 (1968) and Commonwealth v. Watts, 216 Pa. Superior Ct. 300, 264 A. 2d 439 (1970). However, in these cases, there had been no written waiver of a jury trial signed by the defendant.

After a full evidentiary hearing, Judge Doty found as a fact that the defendant understood his right and intelligently and knowingly waived it by choice. In Commonwealth v. Young, 433 Pa. 146, 249 A. 2d 559 (1969) , the Supreme Court held that findings of the court below will not be disturbed on appeal unless they have no support in the record. Here the court below had before it a signed waiver and the testimony of the defendant at the hearing supporting the finding. In the Young case, supra, the question before the hearing judge was whether the plea was induced by a confession and the Supreme Court speaking through Mr. Justice Egberts said at page 149: “The determination of whether the plea was primarily induced by the confession is one that the hearing judge will make largely through his firsthand examination of appellant.”

The contention that he was substantially prejudiced by lack of counsel at the preliminary hearing is without merit. This was not raised in his direct appeal from judgment of sentence and should be deemed waived. Commonwealth v. Simon, 446 Pa. 215, 285 A. 2d 861 (1971). See also, 19 P.S. §1180-4(b). The right to counsel at a preliminary hearing as determined by Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970), is not retroactive to the time of defendant’s trial. Adams v. Illinois, 405 U.S. 278, 92 S. Ct. 916, 31 L. Ed 2d 202 (1972); Commonwealth v. Brown, 217 Pa. Superior Ct. 190, 269 A. 2d 383 (1970). And as the court below put it: “Of course, the defendant is not precluded from showing such ‘substantial prejudice’ as to warrant the granting of relief: Commonwealth v. Brown, supra at page 195. In the instant case there was no such substantial prejudice.”

Order of the court below is affirmed.

Dissenting Opinion bt

Hoffman, J.:

In this appeal from denial of a petition for post-conviction relief, appellant contends that Ms waiver of jury trial was invalid because there was no colloquy on the record coneerMng the waiver as required by Pennsylvania Rule of Criminal Procedure 1101. I agree with this contention for the reason set forth in Judge Spaulding’s dissent in Commonwealth v. Williams, 217 Pa. Superior Ct. 285, 269 A. 2d 143 (1970).

Rule 1101 which became effective on August 1, 1968, one year before appellant’s trial provides: “In all cases, except those in which a capital crime is charged, the defendant may waive a jury trial with the consent of his attorney, if any, the attorney for the Commonwealth, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record and shall be in the following form . . . .” (Emphasis added).

The previous rule required only a written waiver signed by the judge, defendant, and attorney for the Commonwealth, Act of June 11, 1935, P. L. 319, 19 P.S. §786. The new rule, however, imposes the additional requirement of a recorded colloquy between the judge and the defendant as to whether the waiver is voluntary and intelligent. The record shows that no colloquy occurred in this case. Such a colloquy gives the defendant oral notice of the rights he is waiving, the trial judge a better indication of the intelligence and voluntariness of a defendant’s waiver, and a reviewing court a basis on the record upon which a trial judge’s finding of voluntariness and intelligence can be reviewed. These advantages are not present when the defendant only signs a waiver form.

In Commonwealth v. Copeland, 212 Pa. Superior Ct. 195, 240 A. 2d 391 (1968), we held that literal compliance with the predecessor of Eule 1101 was necessary for a valid waiver. I see no reason Avhy we should not require literal compliance with the dual requirements of the present rule, and hold that failure to do so is fundamental error. Commonwealth v. Watts, 210 Pa. Superior Ct. 300, 264 A. 2d 439 (1970). See also Commonwealth v. Hooks, 220 Pa. Superior Ct. 258, 281 A. 2d 759 (1971). I Avould, therefore, reverse the denial of the petition and grant appellant a neAV trial.

Spaulding, J., joins in this dissenting opinion. 
      
       The majority indicates that, despite the absence of a colloquy, Judge Doty could find on the basis of testimony presented at the post-conviction hearing that appellant intelligently waived his right to a jury trial. AVhile I believe that this procedure is improper and that the total failure to engage in such a colloquy is fundamental, error in itself, it is apparent that the testimony at the post-conviction hearing was not sufficient to support a finding that appellant intelligently waived his right to a trial by jury. The only independent knowledge of appellant, brought out on cross-examination in the post-conviction hearing, was that in a jury trial twelve people would determine his guilt or innocence. He was not informed that a jury would be chosen from members of the community; that he would be entitled to participate in the selection of the jury panel by peremptory challenges and challenges for cause; or that a verdict of guilty would require the concurrence of all twelve members of the jury. He was thus not fully aware of “the full dimensions of the right . . . [and] [i]t cannot be assumed that the [appellant] understands any element of the right which has not been explicitly explained.” Commonwealth v. Ritchey, 431 Pa. 269, 272-73, 245 A. 2d 446 (1968) (right to counsel on appeal).
      It is clear that even if the majority is correct in its view of the proper procedure to be followed in determining the validity of a waiver of jury trial, the evidence presented below did not establish a knowing and intelligent waiver of this constitutional right Appellant could not weigh the circumstances and consequences of his waiver, and, therefore, the waiver could not be found to be knowing and intelligent. See Commonwealth v. Wilson, 430 Pa. 1, 241 A. 2d 760 (1968) (right to counsel on appeal).
     