Opinion by
This сase raises the interesting question of the effect of the failure of the trial judge to comply with Pa. R. *370 Crim. P. 1101 1 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 assаult 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 alloсatur.
Subsequently appellant filed a petition under the Post Conviction Hearing Act
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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,
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 intelligеntly entered as required under Pa. R. Crim. P. 1101 3 vitiated the *371 entire proceedings and now entitles Mm to a new trial. Tb.e transcript of tlie proceedings reveal that a signed written waiver in conformity with the directions of Bale 1101 was filed and the record also contained a statement by counsel for the defense that “I will waive аll 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 waiver and such colloquy shall appear on the record” is supported by the trial transcript and conceded by the Commonwealth.
Thе Superior Court justified its affirmance of the court below on the ground that the post-conviction hearing court had before it a signed waiver and had elicited testimony from appellant 4 during the hearing that would suggest that appellant was aware of the significance of the waiver at the time of triаl.
The Commonwealth argues that we should not formulate a rule which would automatically vitiate the proceedings and allow the defendant to be rеarraigned because of the lower court’s failure to comply with the colloquy portion of Bule 1101. In the alternative they suggest that this omission can be satisfied if the Com *372 monwealth at a subsequent proceeding can establish that appellant at the time of trial possessed the requisite knowledgе of the right to jury and that he did voluntarily waive his right.
Although we cannot presume a voluntary waiver of any constitutional right from a silent record,
Boykin v. Alabama,
The appellant argues that we should make a per se prophylactic rule reversing convictions for failure to comply with Rule 1101,
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despite the fact that a subsequent full and fair hearing proved the waiver of the constitutional right was knowing and intelligent. When we make rules for criminal proceedings we do so in order to protect the rights of the individual and therefore we expect strict compliance with thоse rules. However, a prophylactic exclusionary rule is applied only in extreme cases where all other attempts to secure compliance have proven unsuccessful. See generally
Mapp v. Ohio,
Furthermore, where there is a subsequent proceeding in which the waiver is proven to be knowing and intelligent on the record such а prophylactic rule seems unnecessary since the purposes of the rule to ensure
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the constitutionality of the waiver and our ability to review it, are satisfied. See
Commonwealth v. Godfrey,
Nevertheless, in the instant case we do agree with appellant that the record on its face, even considering the subsеquent hearing, does not justify the finding of a knowing and intelligent waiver.
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All that the record reveals is appellant’s knowledge that he could have a trial in which twеlve men decide his guilt or innocence. Nowhere on the record is there any indication that he knew the essential ingredients of a jury trial which are necessary to understand the significance of the right he was 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. In
Commonwealth v. Fugmann,
In view of the failure of the record to establish that аppellant had sufficient knowledge of the right which it is now contended he waived, we are unable to find that the waiver was either knowing or intelligent,
Commonwealth v. Hooks,
The order of the Superior Court affirming the judgment of sentence is reversed and a new trial is awarded.
Notes
Although Rule 1101 has recently been revised by this Court (see Amendment by Order of March 29, 1973) the language herein under consideration remains unchanged.
Act of January 25, 1966, P. L. (1965) 1580, §1, effective March 1, 1966, 19 P.S. §1180 et seq.
The version of Rule 1101 in effect at the time of the trial in this case provided:
“Rule 1101. Waiver of Jury Trial
“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 apрroval by a judge of the court in which the case is pending, and elect to *371 be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is а 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 thе following form. . . .
The record of the post-conviction hearing shows the following colloquy: “Q. Now at that time when you were called up to the bar of thе 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 innоcence, 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 pеople 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.”
The United States Supreme Court under its supervisory powers formulated such a prophylactic rule in the case of noncompliance with Fed. R. Crim. P. 11 which provides the required constitutional procedure for acceptance of a guilty plea in federal court.
McCarthy v. U. S.,
Iu view of our disposition of this argument in аppellant’s favor, we need not consider the other argument raised in his brief dealing with ineffective assistance of counsel.
The United States Suprеme Court has recently rejected the concept that the States are subject to the unanimity requirement under the due process clause of the federal constitution,
Johnson v. Louisiana,