filed: August 26, 1983.
COMMONWEALTH OF PENNSYLVANIA
JAMES SHERMAN, APPELLANT
NO. 948 PHILADELPHIA, 1980, Appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 329 August Term, 1979.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Cavanaugh and Beck, JJ.
Author: Per Curiam
[ 318 Pa. Super. Page 441]
Appellant, James Sherman, was found guilty by a jury of burglary, theft and receiving stolen property. Post-verdict motions were argued and denied, and appellant was sentenced from ten to twenty years incarceration on the burglary conviction; the other crimes merged for sentencing purposes.
[ 318 Pa. Super. Page 442]
Prior to trial, appellant sought to forego his right to a jury trial in favor of a bench trial pursuant to Pa.R.Crim.P. 1101 which provides:
In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record and shall be in the following form:
IN THE COURT OF COMMON PLEAS OF THE COUNTY OF ___ CRIMINAL ACTION NO ___ OF ___ 19___ COMMONWEALTH OF PENNSYLVANIA
WAIVER OF JURY TRIAL
AND NOW, ___, 19___, comes the defendant and pleads not guilty and with the consent of his attorney and the approval of the judge waives a jury trial and elects to be tried by a judge without a jury.
Attorney for Defendant
The Commonwealth objected to this waiver and asserted its right to a jury trial pursuant to 42 Pa.C.S. § 5104(c) which states: "In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused." The lower court denied appellant's Pa.R.Crim.P. 1101 motion for a bench trial and, in doing so, relied upon 42 Pa.C.S. § 5104(c). Appellant questioned on appeal the constitutionality
[ 318 Pa. Super. Page 443]
of 42 Pa.C.S. § 5104(c), and we certified that issue to the Supreme Court for decision.
The Supreme Court, 500 Pa. 369, 460 A.2d 1074 (1982) remanded this matter to us for proceedings consistent with Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), in which the same constitutional question was certified by this Court. Sorrell held 42 Pa.C.S. § 5104(c) to be unconstitutional:
In enacting 42 Pa.C.S. § 5104(c), a statute inconsistent with an existing rule of criminal procedure, the Legislature exceeded its constitutional authority and obligation to promulgate rules of procedure to govern courts throughout the Commonwealth, 42 Pa.C.S. § 5104(c) must be deemed suspended pursuant to Pa. Const.Art. V. § 10(c) and declared unconstitutional.
Id., 500 Pa. at 361, 456 A.2d at 1329.
The trial court in the instant case treated 42 Pa.C.S. § 5104(c) as reposing in the Commonwealth an absolute right to trial by jury such that assertion of that right by the Commonwealth necessitated denial of appellant's Pa.R.Crim.P. 1101 motion. In other words, absent the Commonwealth's consent, appellant was not allowed to waive his jury trial. The Court stated: "If the Commonwealth allows you to have [a bench trial], you may have it." Notes of Testimony ("N.T.") 12/7/79 at 20. The Court also stated: "[U]nder the present law you cannot have anything other than a jury trial." N.T. 12/7/79 at 17-18. Additionally, the Court noted in its opinion: "[U]nless and until the Supreme Court of Pennsylvania suspends 42 Pa.C.S. § 5104, this Court must enforce the Commonwealth's right to trial by jury." Lower court opinion at 5.*fn1
[ 318 Pa. Super. Page 444]
This Court has previously remanded in light of Sorrell. Commonwealth v. Maxwell, 312 Pa. Super. 557, 459 A.2d 362 (reargument denied May 25, 1983); Commonwealth v. Giaccio, 311 Pa. Super. 259, 457 A.2d 875 (1983) (reargument denied April 18, 1983). Citing Commonwealth v. Lee, 262 Pa. Super. 280, 396 A.2d 755 (1978) and Commonwealth v. Garrison, 242 Pa. Super. 509, 364 A.2d 388 (1976), Giaccio noted that Pa.R.Crim.P. 1101 does not require the lower court to accept a defendant's waiver of his right to a jury trial. That decision is within the sound discretion of the lower court. In Giaccio, we stated:
We acknowledge that [ Lee and Garrison ] don't go very far in defining the boundaries of the lower court's discretion when it is asked to approve a defendant's waiver of a jury trial.*fn2 But in the absence of any provision in Rule 1101 defining these boundaries, we must proceed case-by-case.
We therefore reverse and remand for new trial, with instructions to the lower court that if appellant on re-trial again states his intention to waive a jury trial, the court should proceed under Rule 1101 to decide whether to approve the waiver, with the additional instruction that if the court decides to disapprove the waiver, it should state the reasons for its decision, so that on any further appeal we may decide whether it has acted within its discretion.
Id., 311 Pa. Super. at 263-64, 457 A.2d at 877.
We reverse judgment of sentence and remand for proceedings consistent with this opinion. Jurisdiction is relinquished.*fn3