Commonwealth v. Sorrell , 500 Pa. 355 ( 1982 )

OPINION OF THE COURT

ROBERTS, Justice.

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.

In 1968, the Commonwealth of Pennsylvania adopted present Article V of the Pennsylvania Constitution (the Judiciary Article), which provides for a unified judicial system. The Judiciary Article vests in the Supreme Court “general supervisory and administrative authority over all the courts,” Pa. Const, art. V, § 10(a), and provides that

“[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, . .. including the power to provide for ... the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose.”

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.”

Id.

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:

“Waiver of Jury Trial.

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....”

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) (jury trial waivers properly denied where records indicated “judge shopping”).

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:

“Well, it is my view — and I express it openly here — that I think the Commonwealth should go along with the defendant and have the defendant tried as he wishes to be tried, at a bench trial, outside the jury hearing. But if the Commonwealth doesn’t want to do it, and it points out in the Statute that it has that right, then two of you have a right. If one of you ask for it, then it is the Court’s obligation, short of calling the Act unconstitutional, to grant the right to the Commonwealth that it has at least by law, if not constitutionally.”

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) (trial court must place on record its reasons for imposition of particular sentence).

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 Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 920 (1926) (“[o]ne of the procedural features ... [of] the administration of the criminal law is ... trial by jury”); Oppenheim, Waiver of Trial by Jury in Criminal Cases, 25 Mich.L.Rev. 695, 712 (1927) (“trial by jury ... is a method, a form, a process. It is a part of a criminal trial procedure ... ”). Thus we conclude that 42 Pa.C.S. § 5104(c), which contravenes Pa.R.Crim.P. 1101, is an unconstitutional infringement upon the procedural rule-making authority of this Court conferred by Pa. Const, art. V, § 10.

It is clear that the trial court erroneously applied 42 Pa.C.S. § 5104(c) in denying the requests for non-jury trials of appellants Sorrell, O’Bryant, and Garwood. On the other hand, in the case of appellant Smith the trial court properly applied Rule 1101, recognizing that the Rule requires the court to consider all relevant factors in deciding whether to grant an accused’s motion to waive trial by jury. Having determined that exposure to the accused’s criminal record during pre-trial proceedings would potentially taint the court’s impartiality as a finder of fact, the court properly exercised its discretion in denying appellant Smith’s request for a non-jury trial in the interest of his obtaining a fair trial.

Records remanded to the Superior Court for proceedings consistent with this opinion.

NIX, J., files a dissenting opinion in which HUTCHINSON, J., joins. McDERMOTT, J., files a dissenting opinion.

* 42 Pa.C.S. § 5104(c) is a codification of the Act of August 7, 1977, P.L. 185, No. 1977-50.