No. 01241 Philadelphia 1983, APPEAL FROM THE ORDER ENTERED APRIL 8, 1983 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, CRIMINAL NO. 1491 of 1981
Richard B. Henry, Honesdale, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Cavanaugh, Cirillo and Johnson, JJ.
[ 338 Pa. Super. Page 498]
This is an appeal by appellant John Merrick from the judgment of sentence*fn1 entered by the Court of Common Pleas of Luzerne County. Following a trial by jury, appellant was convicted of murder in the first degree. Post-trial motions were denied by the trial court en banc, and appellant was sentenced to life imprisonment. We affirm.
On September 15, 1981, appellant was arrested for the stabbing death of his father. Prior to his preliminary hearing, a mental health evaluation revealed that appellant was incompetent to stand trial. Approximately six months later, appellant was found competent. He waived his preliminary hearing and formal arraignment. Pursuant to Pa.R.Crim.P. 1101, appellant requested a waiver of a jury
[ 338 Pa. Super. Page 499]
trial. The motion was denied by the trial court. Notice of an insanity or mental infirmity defense was filed as required by Pa.R.Crim.P. 305(C)(1)(b). A jury convicted appellant of first-degree murder.
Five issues are raised by appellant in the instant appeal. The first question presented for our review is whether the trial court erred in denying appellant's request to waive his right to a jury trial. Pa.R.Crim.P. 1101 provides in part:
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 . . . .
"It is well established that there is no constitutional prohibition to a court's denial in appropriate circumstances, of a defendant's request to be tried by a judge sitting without a jury." Commonwealth v. Garrison, 242 Pa. Super. 509, 514-15, 364 A.2d 388, 390 (1976) (allocatur denied). See also Commonwealth v. Hailey, 332 Pa. Super. 167, 480 A.2d 1240 (1984) (no absolute right to a bench trial); Commonwealth v. Edney, 318 Pa. Super. 362, 464 A.2d 1386 (1983) (same); Commonwealth v. Maxwell, 312 Pa. Super. 557, 459 A.2d 362 (1983) (court not constitutionally prohibited from denying request to waive jury trial); Commonwealth v. Giaccio, 311 Pa. Super. 259, 457 A.2d 875 (1983) (no absolute right to non-jury trial); Commonwealth v. Forrest, 305 Pa. Super. 297, 451 A.2d 540 (1982) (no constitutional reason why a court cannot refuse waiver). Rather, the decision to grant a waiver of a jury trial is one committed to the sound discretion of the trial court. Commonwealth v. Sorrell, 500 Pa. 355, 456 ...