Dissenting Opinion by
Jacobs, J.:The majority holds that a criminal defendant who has had a suppression hearing in the Municipal Court of Philadelphia, and is then convicted in said court, is entitled to a second suppression hearing in the court of common pleas when he appeals and receives a trial de novo.
The Constitution of our Commonwealth clearly states that while a defendant does not have a right of trial by jury in the municipal court, “he shall have the right of appeal for trial de novo including the right to trial by jury to the trial division of the court of common pleas.”1 The Constitution gives him the right to trial, not a right to relitigate his pretrial motions. Rule 323 of the Pennsylvania Eules of Criminal Procedure on suppression of evidence distinguishes between a trial and a suppression hearing. It states that “a judge of the court shall fix a time for hearing, which may be either prior to or at trial . . . .” Pa. R. Crim. P. 323(e).2 Rule 323 states in conclusion: “If the court *30determines that the evidence is admissible, such determination shall be final, conclusive and binding at trial, . . . but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its admissibility.” [Emphasis added.]
I would hold that the appellant is entitled to but one suppression hearing in the municipal court, and to relitigate such pretrial motions with an appeal for a trial de novo would prove detrimental to the administration of criminal justice.
Appellant also argues that the knife found on his person pursuant to a stop-and-frisk by the arresting officer should have been suppressed by the municipal court. However, the arresting officer had received over the police radio information to the effect that a man dressed like appellant and on the same street as appellant was armed with a gun. As the arresting officer arrived at this location,- he observed appellant “walking, stopping and turning around.” Under these circumstances, it was proper for the officer to stop and frisk appellant. See Adams v. Williams, 407 U.S. 143 (1972); Terry v. Ohio, 392 U.S. 1 (1968).
Appellant’s final argument is that his waiver of jury trial was unintelligent. Prior to his waiver, the following colloquy between appellant and his counsel appears on the record: “Q. Mr. White, you understand you have an absolute right to a jury trial in this matter? A. Yes. Q. And you understand if you ehose to have a jury trial you would probably have to prove your case beyond a reasonable doubt and to the satisfaction of every single person on the jury? A. Yes. Q. And you understand if you waive that right, you can ask his Honor, Judge Carson to hear the evidence. And he alone would decide whether you are innocent or guilty; do you understand that? A. Yes.” [Emphasis added.] At the end of the colloquy the appellant requested to be tried by the judge. Pa. R. Crim. P. 1101 on waiver of *31jury trial requires that “[t]he judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record.” Where, as in this case, the colloquy itself shows that the appellant was misinformed that the burden of proof would be on him if he chose to have a jury trial, there has been no intelligent waiver of his right to jury trial.
I would reverse the judgment of sentence and grant a new trial without a new suppression hearing.
Pa. Const. Schedule art. 5, § 16(r) (iii).
The Municipal Court of Philadelphia is a court of record complying with the definition of a court in Rule 3 of the Pennsylvania Rules of Criminal Procedure with constitutional jurisdiction over the cases assigned to it There is no reason why its decision on suppression should not be as binding as that of the court of common pleas.