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decided: December 30, 1982.


Nos. 14, 15, 16, 17 E.D. Appeal Docket, 1982, On appeal pursuant to certification by the orders of the Superior Court at No. 2406 October Term, 1978, No. 2451 October Term, 1978, No. 711 Philadelphia, 1980, and No. 1486 Philadelphia, 1980.


William Lee Akers, Philadelphia, for Sorrell.

Victor J. DiNubile, Jr., Steve B. Hilkowitz, Philadelphia, for O'Bryant.

Steven Dickstein, Philadelphia, for Garwood.

John W. Packel, Chief, Appeals Div., Elaine DeMasse, Leonard Sosnov, Asst. Public Defenders, Philadelphia, for Smith.

Robert B. Lawler, Chief, Appeals Div., Eric B. Henson, Deputy District Atty., for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., files a dissenting opinion in which Hutchinson, J., joins. McDermott, J., files a dissenting opinion.

Author: Roberts

[ 500 Pa. Page 357]


Appellants were tried and convicted by the Court of Common Pleas of Philadelphia sitting with a jury. Prior to

[ 500 Pa. Page 358]

    trial each of the appellants made a request pursuant to Pennsylvania Rule of Criminal Procedure 1101 to waive trial by jury. Under Rule 1101, an accused who elects to forgo his constitutional right to be tried by a jury may be tried by a judge if he obtains the court's approval of a non-jury trial. The requests were opposed by the Commonwealth, which asserted an absolute right to jury trial pursuant to 42 Pa.C.S. § 5104(c). At Nos. 14 and 15 Appeal Docket 1982 (E.D.), in the case of appellants Sorrell and O'Bryant, who were tried together for the robbery of a luncheonette-grocery store, and at No. 16, in the separate case of appellant Garwood, who was tried on a charge of aggravated assault, the court denied the accused's Rule 1101 motion to waive trial by jury on the ground that the Commonwealth's reliance on 42 Pa.C.S. § 5104(c) precluded the court from granting a defense request for a non-jury trial. At No. 17, in the case of appellant Smith, who was tried on a charge of burglary, the court rejected the Commonwealth's assertion that it had an absolute right to a jury trial, but exercising the discretion conferred by Rule 1101, determined that it would be inappropriate to approve a non-jury trial.

Following the imposition of judgments of sentence and the denial of post-verdict motions, appeals were taken to the Superior Court. Because each appellant challenges the constitutionality of 42 Pa.C.S. § 5014(c), an issue addressed but not decided in Commonwealth v. Wharton, 495 Pa. 581, 435 A.2d 158 (1981), the Superior Court has certified the common constitutional question to this Court. We remand to the Superior Court for proceedings consistent with this opinion.

In 1968, the Commonwealth of Pennsylvania adopted present Article V of the Pennsylvania Constitution (the Judiciary Article), which provides for a unified judicial system. The Judiciary Article vests in the Supreme Court "general supervisory and administrative authority over all the courts," Pa. Const. art. V, § 10(a), and provides that

"[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, . . . including the power to provide for

[ 500 Pa. Page 359]

. . . the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose."

Pa. Const. art. V, § 10(c). The Judiciary Article further provides:

"All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions."


Pursuant to our supervisory and administrative authority, this Court promulgated Rule of Criminal Procedure 1101 to govern the procedure in criminal cases where the accused elects to be tried without a jury. As initially adopted in 1968, Rule 1101 permitted a trial to proceed without a jury in those cases in which a request for a non-jury trial had the approval of the court and the consent of the prosecutor. These requirements of court approval and prosecutorial consent had also been contained in 19 P.S. § ...

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