
    460 A.2d 1074
    COMMONWEALTH of Pennsylvania v. James SHERMAN, Appellant.
    Supreme Court of Pennsylvania.
    Argued Oct. 21, 1982.
    Decided Dec. 30, 1982.
    Reargument Denied March 11, 1983.
    John W. Packel Chief, Appeals Div. Jeffrey Shender, Philadelphia, for appellant.
    Robert B. Lawler Chief, Appeals Div. Asst. Dist. Atty. Eric B. Henson Deputy Dist. Atty., for appellee.
    Before O’BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and HUTCHINSON, JJ.
   OPINION OF THE COURT

ROBERTS, Justice.

The Superior Court has certified to this Court the question of the constitutionality of 42 Pa.C.S. § 5104(c), upon which the Court of Common Pleas of Philadelphia relied in denying appellant’s motion to waive trial by jury pursuant to Pa.R. Crim.P. 1101. In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982) (filed this day), in which the same constitutional question was certified by the Superior Court, this Court declared 42 Pa.C.S. § 5104(c) unconstitutional, concluding 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.”

Record remanded to the Superior Court for proceedings consistent with Commonwealth v. Sorrell, supra.

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

McDERMOTT, J., did not participate in the consideration or decision of this case.

NIX, Justice,

dissenting.

I dissent for the reasons set forth in my opinion in Commonwealth v. Sorrell, 500 Pa. 355, 363-64, 456 A.2d 1326, 1330 (1982) (filed this day) (Nix, J., dissenting).

HUTCHINSON, J., joins in this dissenting opinion.  