(dissenting).
I dissent from the Court’s order dismissing this appeal as improvidently granted. In this case a police officer was permitted to testify over the objection of the appellant concerning a statement made by the appellant at the time he was arrested. The prosecuting attorney specifically asked the police officer at trial what, if anything, the appellant had said when he was informed that he was under arrest. The officer was permitted to testify that the appellant requested the assistance of counsel. Such testimony has been condemned by this Court. See Commonwealth v. Haideman, 449 Pa. 367, 290 A.2d 765 (1972); Commonwealth v. Stafford, 450 Pa. 252, 299 A. 2d 590 (1973).
The issue was properly preserved by the appellant when his objection was entered and overruled. Rule 1115(a) of the Pennsylvania Rules of Criminal Procedure provides that:
“Any ruling of the judge on an objection or motion made during the trial of any action or proceeding shall have the effect of a sealed exception in favor of the party adversely affected without the necessity of a formal request or notation made on the record.”
The appellant was not required to move for a mistrial in order to preserve his rights.
Once a jury has been impaneled a defendant has the right to be tried by that jury and cannot be compelled to give up his right to be tried by the impaneled jury in order to prevent the erroneous omission of prejudicial evi*172dence. It cannot be said that a defendant must move for a mistrial or lose his rights when prejudicial evidence is erroneously omitted over the objection of the defendant.
Because reversible error was committed in this case and the appellant properly preserved his rights by a timely objection, the judgment of sentence should be reversed and a new trial granted.
ROBERTS, J., joins in this dissenting opinion.