No. 1882 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 500 and 501 August Term 1977.
Neil E. Jokelson, Philadelphia, for appellant.
Michele Goldfarb, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Wickersham and Van der Voort, JJ.
[ 320 Pa. Super. Page 561]
Early in the morning of June 30, 1977, John W. Boyd, Jr., an off-duty officer of the Philadelphia Police Department,
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entered a bar in the city of Philadelphia. There was an altercation between Boyd and another patron of the bar; Boyd shot and wounded the person with whom he had been arguing.
After a jury trial John W. Boyd, Jr. was convicted of recklessly endangering another person*fn1 and aggravated assault.*fn2 Post-verdict motions were heard and denied by the Honorable William M. Marutani; the judge sentenced Boyd to five years probation on August 21, 1979. A direct appeal to this court, 298 Pa. Super. 615, 443 A.2d 401, followed and the judgment of sentence was affirmed in a memorandum opinion filed March 26, 1982.
The Pennsylvania Supreme Court granted Boyd's petition for allowance of appeal. On April 4, 1983 the supreme court, 500 Pa. 370, 457 A.2d 858, vacated our order and directed us to consider Boyd's case in light of its decision in Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982). Accordingly, we have re-examined Boyd's case with guidance provided by our supreme court.
In Sorrell, supra, appellant wished to waive his right to trial by jury. The Commonwealth asserted an absolute right to jury trial pursuant to 42 Pa.C.S. § 5104(c) and, therefore, opposed Sorrell's request. After sentencing, Sorrell appealed to this court and argued that 42 Pa.C.S. § 5104(c) was unconstitutional. The constitutional question was certified to the supreme court.
The supreme court held that Section 5104(c) is unconstitutional. The court reasoned that Pa.R.Crim.P. 1101, promulgated under its constitutional authority to supervise the courts, made it clear that the decision to grant or deny a defense request for a non-jury trial must be made only by the trial court. Therefore, the statute giving the Commonwealth the same right to ...