No. 2451 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 818-819 February Term, 1978
Victor J. DiNubile, Jr., Philadelphia, for appellant.
Alan J. Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Cirillo and Hoffman, JJ.
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In June, 1978 appellant June O'Bryant was found guilty by a jury of charges of robbery and conspiracy. He was sentenced to a term of imprisonment of eight to sixteen years, to be followed by a probationary term of five years. This appeal followed.
The incident which led to his arrest occurred on December 17, 1977 when a restaurant known as Ellis' Luncheonette
[ 320 Pa. Super. Page 234]
was robbed at gunpoint by two men, one of whom wore a ski mask and was subsequently identified as appellant Mr. O'Bryant.
On appeal Mr. O'Bryant argues that the lower court erred in denying a request made by him to be tried without a jury. This argument was raised also by Mr. O'Bryant's co-defendant, William Sorrell, as well as by other appellants. Our Supreme Court considered their claims that 42 Pa.C.S.A. 5104(c) pursuant to which each of them had been denied the right to waive jury trial, is unconstitutional. The Court held that the statute is unconstitutional since it conflicts with Pa.R.Crim.Proc. 1101.*fn1 The case was remanded to us for disposition consistent with the Supreme Court's opinion. In view of that opinion, we reverse and remand the case for new trial.
In addition to the jury trial question, we will address claims made by Mr. O'Bryant that the suppression court erred in finding admissible: 1) a confession made by him; 2) a gun seized from his mother's residence, and 3) a photographic identification of him made by a witness to the robbery which led to his conviction.
Prior to trial, Mr. O'Bryant and his co-defendant Mr. Sorrell*fn2 moved pursuant to Pa.R.Crim.Proc. 1101 to be tried without a jury. That request was denied by the lower court because it believed that 42 Pa.C.S. 5104(c) gave to the Commonwealth a right to jury trial equal to that of a defendant. The Commonwealth demanded a jury trial.
In Commonwealth v. Sorrell, supra our Supreme Court did find 42 Pa.C.S. § 5104(c) unconstitutional. Based on that opinion we recently remanded for new trial in Commonwealth v. Giaccio, 311 Pa. Super. 259, 457 A.2d 875 (1983). As in Giaccio we remand this case for new trial with instructions to the lower court that if the appellant on retrial again states his intention to waive jury trial, the
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court should proceed under Rule 1101 to decide whether ...