Commonwealth v. Sorrell
Decision Date | 30 December 1982 |
Citation | 500 Pa. 355,456 A.2d 1326 |
Parties | COMMONWEALTH of Pennsylvania v. William SORRELL, Appellant. COMMONWEALTH of Pennsylvania v. June O'BRYANT, Appellant. COMMONWEALTH of Pennsylvania v. Talmadge GARWOOD, Appellant. COMMONWEALTH of Pennsylvania v. Robert SMITH, Appellant. |
Court | Pennsylvania Supreme Court |
Argued Oct. 21, 1982.
Reargument Denied March 11, 1983.
William Lee Akers, Philadelphia, for Sorrell.
Victor J. DiNubile, Jr., Steve B. Hilkowitz, Philadelphia, for O'Bryant.
Steven Dickstein, Philadelphia, for Garwood.
John W. Packel, Chief, Appeals Div., Elaine DeMasse, Leonard Sosnov, Asst. Public Defenders, Philadelphia, for Smith.
Robert B. Lawler, Chief, Appeals Div., Eric B. Henson, Deputy District Atty., for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY McDERMOTT and HUTCHINSON, JJ.
Appellants were tried and convicted by the Court of Common Pleas of Philadelphia sitting with a jury. Prior to trial each of the appellants made a request pursuant to Pennsylvania Rule of Criminal Procedure 1101 to waive trial by jury. Under Rule 1101, an accused who elects to forgo his constitutional right to be tried by a jury may be tried by a judge if he obtains the court's approval of a non-jury trial. The requests were opposed by the Commonwealth, which asserted an absolute right to jury trial pursuant to 42 Pa.C.S. § 5104(c). At Nos. 14 and 15 Appeal Docket 1982 (E.D.), in the case of appellants Sorrell and O'Bryant who were tried together for the robbery of a luncheonette-grocery store, and at No. 16, in the separate case of appellant Garwood, who was tried on a charge of aggravated assault, the court denied the accused's Rule 1101 motion to waive trial by jury on the ground that the Commonwealth's reliance on 42 Pa.C.S. § 5104(c) precluded the court from granting a defense request for a non-jury trial. At No. 17, in the case of appellant Smith, who was tried on a charge of burglary, the court rejected the Commonwealth's assertion that it had an absolute right to a jury trial, but exercising the discretion conferred by Rule 1101, determined that it would be inappropriate to approve a non-jury trial.
Following the imposition of judgments of sentence and the denial of post-verdict motions, appeals were taken to the Superior Court. Because each appellant challenges the constitutionality of 42 Pa.C.S. § 5014(c), an issue addressed but not decided in Commonwealth v. Wharton, 495 Pa. 581, 435 A.2d 158 (1981), the Superior Court has certified the common constitutional question to this Court. We remand to the Superior Court for proceedings consistent with this opinion.
Pa. Const. art. V, § 10(c). The Judiciary Article further provides: "All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions."
Pursuant to our supervisory and administrative authority, this Court promulgated Rule of Criminal Procedure 1101 to govern the procedure in criminal cases where the accused elects to be tried without a jury. As initially adopted in 1968, Rule 1101 permitted a trial to proceed without a jury in those cases in which a request for a non-jury trial had the approval of the court and the consent of the prosecutor. These requirements of court approval and prosecutorial consent had also been contained in 19 P.S. § 786, Act of June 11, 1935, P.L. 319, § 1, the statute which governed the waiver of trial by jury prior to the adoption of Rule 1101.
In 1973, following five years of experience with the Rule, this Court amended Rule 1101 to its present form, making it clear that the decision whether to grant a defense request for a non-jury trial must be made solely by the trial court, which is charged with the constitutional responsibility of assuring the fair and orderly administration of justice. Amended Rule 1101 provides:
While the prosecutor's concurrence in or opposition to a defense request for a non-jury trial is a relevant consideration in determining the mode of trial, amended Rule 1101 does not deem any one fact or circumstance controlling. Rather, the decision whether to permit a non-jury trial is to be made by the court, taking into account all relevant considerations. See, e.g., Commonwealth v. Pettiford, 265 Pa.Super. 466, 402 A.2d 532 (1979), Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), and Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976) ( ).
In 1978, five years after the adoption of amended Rule 1101, the Legislature enacted 42 Pa.C.S. § 5104(c), which provides: "In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused." [*] In applying 42 Pa.C.S. § 5104(c) in the cases of appellants Sorrell, O'Bryant, and Garwood, the court concluded that the Commonwealth's refusal to agree to a non-jury trial barred the court from granting the defendant's Rule 1101 motion to waive trial by jury. Commenting upon the Commonwealth's refusal, the court in the case of appellant Garwood stated:
The manifest conflict between 42 Pa.C.S. § 5104(c) and Rule 1101 makes it clear that the statute and rule cannot coexist. By conferring upon the prosecution an absolute right to jury trial, 42 Pa.C.S. § 5104(c) precludes the trial court from exercising the discretion conferred by Rule 1101 in assessing whether a non-jury trial should be permitted. Unlike Rule 1101, which provides for an impartial determination and fosters public accountability on the part of the prosecutor by encouraging him to state his position on the record, 42 Pa.C.S. § 5104(c) provides for prosecutorial control of the accused's motion to waive trial by jury without any provision for the prosecutor's accountability through judicial review. Compare Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) ( ).
In enacting 42 Pa.C.S. § 5104(c), a statute inconsistent with an existing rule of criminal procedure, the Legislature exceeded its constitutional authority. As Rule 1101 was validly adopted and amended pursuant to this Court's constitutional authority and obligation to promulgate rules of procedure to govern courts throughout the Commonwealth, 42 Pa.C.S. § 5104(c) must be deemed suspended pursuant to Pa. Const. art. V, § 10(c) and declared unconstitutional.
The Commonwealth seeks to avoid a declaration of unconstitutionality by contending that the right to trial by jury conferred by 42 Pa.C.S. § 5104(c) is a "substantive right" beyond this Court's power to "abridge, enlarge or modify" by procedural rule. See Pa. Const. art. V, § 10(c). Contrary to the Commonwealth's assertion, the right to trial by jury is not a "substantive right," but a right of procedure through which rights conferred by substantive law are enforced. See Bloom v. Illinois, 391 U.S. 194, 208 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 149 n. 14, 88 S.Ct. 1444, 1448 n. 14, 20 L.Ed.2d 491 (1968); Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942); Territory of Hawaii v. Mankichi, 190 U.S. 197, 217, 23 S.Ct. 787, 791, 47 L.Ed. 1016 (1903); Terry Appeal, 438 Pa. 339, 265 A.2d 350 (1970), aff'd sub nom. McKeiver & Terry v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Commonwealth v. Maxwell, 271 Pa. 378, 387, 114 A. 825, 828 (1921). See also Williams v. Florida, 399 U.S. 78, 112, 90 S.Ct. 1893, 1911-12, 26 L.Ed.2d 446 (1970) (Black, J., joined by Douglas, J., concurring in part and dissenting in part). See generally Thayer, A Preliminary Treatise on Evidence at the Common Law 199 (1898) ("a mode of trial" is "a form of procedure; not law, in our sense of substantive law"); Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional...
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Com. v. Sorrell
...456 A.2d 1326 ... 500 Pa. 355, 37 A.L.R.4th 293 ... COMMONWEALTH of Pennsylvania ... William SORRELL, Appellant ... COMMONWEALTH of Pennsylvania ... June O'BRYANT, Appellant ... COMMONWEALTH of Pennsylvania ... Talmadge GARWOOD, Appellant ... COMMONWEALTH of Pennsylvania ... Robert SMITH, Appellant ... Supreme Court of Pennsylvania ... Argued Oct. 21, 1982 ... ...
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Com. v. Giaccio
...provides: "In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused." In Commonwealth v. Sorrell, --- Pa. ---, 456 A.2d 1326 (1982), the Supreme Court declared 42 Pa.C.S. § 5104(c) unconstitutional. 1 We therefore reverse and remand for proceedings c......