No. 1760 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas Trial Division, Criminal Section, of Philadelphia County at No. C.P. 80-02-2235 and 2237, No. 1764 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County at No. 2235-2264 February Term, 1980.
Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant in No. 1760 and appellee in No. 1764.
David Hirsh, Dresher, for appellant in No. 1764 and appellee in No. 1760.
Cavanaugh, Cirillo and Hoffman, JJ.
[ 312 Pa. Super. Page 558]
This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County. The relevant facts of the instant case are as follows: Maxwell was arrested and charged with two counts of robbery.*fn1 Prior to the trial, Maxwell filed a motion pursuant to Pennsylvania Rule of Criminal Procedure 1101 to waive a trial by jury. The request was opposed by the Commonwealth which asserted an absolute right to a jury trial pursuant to 42
[ 312 Pa. Super. Page 559]
Pa.C.S.A. § 5104(c). Maxwell's motion was denied. He was subsequently convicted by a jury on both counts of robbery*fn2 and sentenced to concurrent terms of probation and fined. The Commonwealth then filed a motion to modify sentence, requesting the court to impose a minimum sentence of four years imprisonment upon Maxwell as a repeat offender.*fn3
Both the Commonwealth and Maxwell have taken appeals; Maxwell from the order denying his request for a non-jury trial and the Commonwealth from the judgment of sentence. The appeals were consolidated in accordance with Pa.R.A.P. No. 2136.
The crucial issue in this appeal is Maxwell's contention that the lower court erred in denying his motion for waiver of a jury trial.*fn4
Maxwell claims the issue before the lower court was not simply whether he should be permitted to waive his right to a jury trial under Pa.R.Crim.P. 1101, but rather the Commonwealth's right to a jury trial under 42 Pa.C.S.A. § 5104(c) in consideration of his rights under Rule 1101.
[ 312 Pa. Super. Page 560]
Our review of the record discloses that the conflict raised by Maxwell between the above mentioned rule and statute was directed to the lower court's attention, however, the court did not address this issue. The following ...