concurring:
I concur in the result reached by the Court, but wi te separately to clarify why I believe a remand is in order.
As stated by the majority, Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1983) declared 42 Pa.C.S. § 5104(c) to be unconstitutional, and mandated the application of Pa.R.Crim.P. 1101. In my view, a remand is only necessary when a request for a non-jury trial has been denied solely because the Commonwealth has demanded a jury trial. This appears to be the case as applied to appellant herein. Although there may have been sufficient justification for denying appellant’s request for a non-jury trial, the trial judge’s inquiry ceased upon the Commonwealth’s demand to go before a jury.
I note further that, where it is clear from the record that appellant’s request for a non-jury trial is motivated by an obvious attempt to maneuver for another judge who might be more lenient, the trial court’s denial will be upheld. See Commonwealth v. Kellum, 339 Pa.Super. 513, 489 A.2d 758 (1985).