Petition No. 816 E.D. Allocatur Docket 1986, for Allowance of Appeal from the Superior Court.
Nix, C.j., files a concurring opinion in which Hutchinson, J., joins. McDermott and Hutchinson, JJ., join in this concurring opinion.
AND NOW, this 19th day of May, 1986, the Petition for Allowance of Appeal is granted and the order of Superior Court, 493 A.2d 88, 342 Pa. Super. 411, reversing the Philadelphia County Common Pleas Court Judgment of Sentence of July 18, 1983, and remanding for retrial is reversed.
This case is remanded to Superior Court to consider the remaining issues raised in that appeal and not reached by that court.
NIX, Chief Justice, concurring.
Although I remain of the view that Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1983), was wrongly decided for the reasons stated in my dissent in that case, id., 500 Pa. at 363, 456 A.2d at 1330 (Nix, J., dissenting, joined by Hutchinson, J.), the Superior Court was clearly in error in disturbing the judgment of sentence for the reasons stated. Whether or not the legislature had the power to grant the district attorney the right to object to a proffered waiver by the defendant in view of Pa.R.Crim.P. 1101, there was no need for an on-the-record colloquy where the respondent did in fact receive a trial by jury. A colloquy is necessary only where there is a waiver of a constitutional right to assure that it is a voluntary and knowing one. Here the right to a jury was not waived.
I therefore join in this order.