On appeal No. 8 E.D. Appeal Docket, 1982, pursuant to certification by the order of the Superior Court at No. 948 Philadelphia, 1980; James T. McDermott, Judge.
John W. Packel Chief, Appeals Div. Jeffrey Shender, Philadelphia, for appellant.
Robert B. Lawler Chief, Appeals Div. Asst. Dist. Atty. Eric B. Henson Deputy Dist. Atty., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty and Hutchinson, JJ. Nix, J., files a dissenting opinion in which Hutchinson, J., joins. McDermott, J., did not participate in the consideration or decision of this case.
The Superior Court has certified to this Court the question of the constitutionality of 42 Pa.C.S. § 5104(c), upon which
the Court of Common Pleas of Philadelphia relied in denying appellant's motion to waive trial by jury pursuant to Pa.R.Crim.P. 1101. In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) (filed this day), in which the same constitutional question was certified by the Superior Court, this Court declared 42 Pa.C.S. § 5104(c) unconstitutional, concluding that "42 Pa.C.S. § 5104(c), which contravenes Pa.R.Crim.P. 1101, is an unconstitutional infringement upon the procedural rule-making authority of this Court conferred by Pa. Const. art. V, § 10."
Record remanded to the Superior Court for proceedings consistent with Commonwealth v. Sorrell, supra.
NIX, Justice, dissenting.
I dissent for the reasons set forth in my opinion in Commonwealth v. Sorrell, 500 Pa. 355, 363-64, 456 A.2d 1326, 1330 (1982) ...