¶1dissenting.
¶2I dissent. Without explicitly stating so this Court today overrules Commonwealth v. Morin, 477 Pa. 80, 383 A.2d *458832 (1978), and adopts the result urged by Justice Pomeroy in his Dissenting Opinion in that case. This overruling of precedent is accomplished not by reasoned analysis but by simple citation to cases whose facts are clearly distinguishable from those present in Morinand in the case at bar.
¶3In Morin, the Court considered a waiver-of-jury colloquy which was devoid of any explanation of the essential elements of a jury trial. We rejected the argument that in the case of a colloquy so inadequate an evidentiary hearing, rather than a new trial, was the appropriate remedy. Instead, we followed the reasoning which had been developed in waiver-of-trial (guilty plea) cases such as Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978) and Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), and reiterated that “ ‘there can be no excuse for a hearing court to have failed to recognize the need of an adequate on the record colloquy reflecting a knowledgeable and intelligent waiver.’ ” 477 Pa. at 87, 383 A.2d at 835, quoting Commonwealth v. Kulp, 476 Pa. at 363, 382 A.2d at 1212 (emphasis in original).
¶4The Majority views this Court as having already departed from the remedy mandated by Ingramin cases subsequent to Morin. I do not so read the cases. In each of the cases cited by the Majority, we examined the “totality of the circumstances” surrounding the waiver involved to determine whether other matters of record could substitute for or “cure” a missing element in an otherwise adequate colloquy. Thus in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982) we held that the appellant had not demonstrated a manifest injustice based on the lack of an explanation of the elements of the crimes charged, because the Commonwealth had already presented its entire case prior to the colloquy. The appellant was, therefore, clearly aware of the evidence available to the Commonwealth and the purpose of the missing element of the colloquy was clearly served by other matters on the record. Similarly in Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982) a lengthy colloquy took place but no recitation of the *459elements of the crimes or explanation of malice as an element of third degree murder was made. The Commonwealth had, however, recited the charges and the factual basis for them and produced ample, competent evidence in the presence of the defendant. Most recently in Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984), despite dictum indicating that the per se approach of Ingramhad been abrogated, it was only necessary for the Court in deciding the case to determine that the evidence of record sufficed to supply the information missing from an otherwise adequate colloquy.
¶5Commonwealth v. Gardner, 499 Pa. 263, 452 A.2d 1346 (1982) was a hybrid of waiver-of-jury and guilty plea cases. There, the appellant sought post-conviction relief from his guilty plea on the grounds that the jury-waiver portion of his plea colloquy was defective and his counsel was ineffective for not appealing on that ground. The defect cited was the failure of the court to explain to the defendant that he could participate in the jury selection or that the jury would be selected from the community. Because the case came before this Court after a PCHA hearing had been held, there was testimony on the record that these missing elements of the colloquy had been explained to the defendant by his counsel.
¶6In Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982), although the on-record colloquy did not contain an explanation of the essential elements of a jury trial, the written form signed by the defendant included an explanation of all those elements. In Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983), the only element missing from the colloquy was that the jury would be chosen from among members of the community. As in Gardner, the case was in the posture of an appeal from denial of post-conviction relief, and a hearing had been held below from which it was clear that the defendant had understood all the elements of the jury trial he was waiving. Finally, in Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984), the sole element lacking in an extensive colloquy was an explanation that a jury verdict must be unanimous. *460This lengthy review of the cases cited by the Majority is necessary to demonstrate that this Court has previously engaged in a review of the “totality of the circumstances” only where a colloquy appears on the record but is lacking in a particular element. It is a giant leap to authorize such a review in the circumstances of this case where there is no colloquy at all. It is, I fear, a leap fraught with danger, for by permitting examination of evidence outside the record in cases where no colloquy has taken place, the Court has dismantled the structure of Rule 1101 and left a mere facade.
¶7I would affirm the order of the Superior Court.