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filed: September 9, 1983.


No. 2406 October, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 814-815 February Term, 1978


William Lee Akers, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ.

Author: Brosky

[ 319 Pa. Super. Page 105]

In June, 1978 appellant William Sorrell was found guilty by a jury of charges of robbery and conspiracy. He was sentenced to a term of imprisonment of 8 to 16 years and

[ 319 Pa. Super. Page 106]

    this appeal followed. We reverse and remand for a new trial because: 1) 42 Pa.C.S. § 5104(c) pursuant to which the lower court denied appellant's attempt to waive his right to jury trial, has been declared unconstitutional by our Supreme Court; and 2) certain incriminating statements made by appellant should have been suppressed as being the fruit of an illegal arrest.

Before discussing the circumstances of appellant's arrest, we will address the jury waiver issue.

Prior to trial, appellant moved, pursuant to Pa.R.Crim.Proc. 1101, to waive trial by jury. That motion was opposed by the Commonwealth which asserted a right to jury trial equal to that of a defendant, citing 42 Pa.C.S. 5104(c). The lower court believed that the Commonwealth's reliance on 42 Pa.C.S. 5104(c) precluded it from granting appellant's request for non-jury trial.

On direct appeal Mr. Sorrell argued that § 5104(c) was unconstitutional. Other appellants, including Mr. Sorrell's co-defendant June O'Bryant raised the same issue and our court subsequently certified the question to our Supreme Court.

In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) the Supreme Court held that 42 Pa.C.S. § 5104(c) is unconstitutional because it conflicts with Pa.R.Crim.Proc. 1101.*fn1 The case was remanded to our court with instructions to enter an order consistent with the Supreme Court opinion.

Based on our recent opinion in Commonwealth v. Giaccio, 311 Pa. Super. 259, 457 A.2d 875 (1983), we reverse and remand this case for new trial. In Giaccio, the appellant argued, as Mr. Sorrell does, that he was unconstitutionally denied the right to waive trial by jury. We noted the Supreme Court's decision in Sorrell, and remanded for new trial with instructions to the lower court that if the appellant

[ 319 Pa. Super. Page 107]

    on re-trial again stated his intention to waive jury trial, the court should proceed under Rule 1101 to decide whether to approve the waiver. As in Giaccio, we remand and also instruct the lower court, if it decides to deny the jury waiver request, to state on the record its reasons for the denial.

In addition to the afore discussed issue, appellant also contends that certain incriminating statements made by him should not have been admitted into evidence because they resulted from an illegal arrest. We agree.

The incident which led to the charges against appellant occurred on December 17, 1977 when the Ellis' Luncheonette in Philadelphia was robbed. Appellant was arrested without a warrant in his home at approximately 9:30 p.m. on January 5, 1978 and charged with having participated in the robbery. Mr. Sorrell argues that the arrest was made without probable cause.*fn2

After his arrest Mr. Sorrell was taken to police headquarters where he was questioned by the arresting officer until approximately 11:00 p.m. During this interrogation appellant apparently made no incriminating statements. However, he was questioned again at 11:30 at which time he seems to have implicated himself in the commission of the robbery. At 1:00 a.m. January 6, appellant was identified in a photo array by an employee of the store which had been robbed.

In the suppression hearing the officer was asked why he had resumed questioning Mr. Sorrell at 11:30. He responded

[ 319 Pa. Super. Page 108]

    that he believed that he had received new information which implicated appellant. However, when he was asked the nature of this additional information, the officer could not recall what he had been told or by whom. Based on this record, we cannot but find that as to the 11:30 interrogation, no intervening events had occurred since the arrests. Since, as we will explain, we believe the arrest to have been without probable cause, we conclude that the 11:30 statement should have been suppressed as a fruit of that arrest.

On appeal from the denial of a suppression motion we will consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as fairly read in the context of the record as a whole remains ...

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