*1 Ms. Helfrich cross-examining before transcript secure the circumstances, there was no these Under following day. the continuance. denying reversible error reasons, judgment of sentence of For the foregoing affirmed. the court below is hereby J., JACOBS, HOFFMAN, former President consideration or decision of this case. not in the participate Pennsylvania COMMONWEALTH BROWN, Appellant. Bradley Pennsylvania. Superior Court of Dec. 1977. Submitted March Decided June Appeal Petition for Allowance of Granted *2 Packel, Defender, Chief, Public Appeals John W. Assistant Division, for Philаdelphia, appellant. Chief, Stiles, Attorney, Ap- R. Assistant District
Michael Commonwealth, Division, appellee. Philadelphia, peals JACOBS, WATKINS, President and Judge, Before CERCONE, PRICE, der HOFFMAN, VAN VOORT SPAETH, JJ.
PRICE, Judge: 28, 1977, appellant non-jury January
Following ag- robbery3 of criminal guilty conspiracy,2 was found motions for a new trial and in assault.4 Post-trial gravated denied, and was sen- were judgment arrest of from four to ten imprisonment years to a term of tenced proba- and a term of charge, state-supervised on the robbery on the criminal conspiracy charge, proba- tion of five years imposed tion to run consecutive sentence The that the as- sentencing court found robbery charge. into the bill. now charge merged Appellant robbery sault him be charges against contends that the should dismissed violated his to a right speedy because the Commonwealth reasons, following under Pa.R.Crim.P. 1100. For thе agree are constrained to with contention. we *3 2, 1976, a criminal was complaint lodged On April him charging robbery, aggravated with against appellant the of Pa.R. precept assault and criminal Under conspiracy. 1100(a)(2),5the Commonwealth had 180 to days Crim.P. 21, 1976, bring appellаnt May appellant peti to trial. On the below to certain evidence. On suppress tioned court 15, 1976, after 175 had run for Rule 1100 days November motion to was heard the appellant’s by purpo.es,6 below, DiBona, per Judge court below. The court granted evidence, as to but denied it as to appellant’s physical motion after appellant’s Immediately ruling confession. motions, DiBona, sua recused himself from sponte, 2. 18 Pa.C.S. 903. §
3. 18 Pa.C.S. 3701. §
4. 18 § Pa.C.S. 2702. 1100(a)(2) provides
5. Pa.R.Crim.P.
that:
“Trial
in a court case in
complaint
against
which a written
is filed
the defendant after June
30,
eighty
days
1974 shall cоmmence no later than one hundred
complaint
from the date on which the
is filed.”
waiver,
Appellant
waiving
signed
thereby
6.
a written
his Rule 1100
rights
forty-two day period
September
for
a
between
and Novem-
time, therefore,
period
calculating
ber 15. This
is excluded from
the run time under
Rule
case
case-in-chief,
continued the
to Decem-
through
the run
for bills 136
1976, even
date
though
ber
22.7
was November
to
a
to extend
petition
failed
file
The Commonwealth
December
through
i. e. November 15
period,8
this
during
which is
time,
properly
no
within
period,
and there was
filed an
1100(d).9 Aрpellant
applica-
under Rule
excludable
7, 1976,
days
fifteen
after
on
tion to dismiss
December
was
by
This motion
denied
run
of November 22.
on
14,1976.
December
on December
On
lower court
case until
the trial
listings
subsequent
all other
his Rule 1100
rights.
waived
January
we are com-
appeаl,
the facts of the instant
upon
Based
was
to
right
speedy
to hold that
pelled
him to
failure
bring
due to
violated
Commonwealth’s
Rule 1100.
trial within the time mandated
pur-
normally
day
have
the 182nd
would
been
November
However,
calculating
poses
Rule 1100 run time.
since
Saturday,
day, plus
day,
on а
it,
180th
November
fell
succeeding
computation
Sunday immediately
are omitted from
See
§
of the run time.
1 Pa.C.S.A 1908.
1100(c)provides
8. Rule
that:
any
prior
expiration
period for commence-
to the
“At
trial,
may apply
attorney
for the Commonwealth
ment
extending
of trial.
for cоmmencement
court for an order
the time
upon
copy
application
A
through
be
the defendant
of such
shall
served
attorney,
any,
shall
have the
his
if
and the defendant
also
granted only
application
if
right
be
be heard
Such
shall
thereon.
period despite
prescribed
be
within the
trial cannot
due
commenced
granting
Any
diligence
such
order
the Commonwealth.
specify
period
application
within which the trial
shall
the date
*4
shall be commenced.”
1100(d)provides that:
9. Rule
trial,
determining
period
of
there
“In
the
for commencеment
delay
stage
period
any
at
of
excluded
such
of
shall be
therefrom
proceedings as
from:
the
results
attorney;
unavailability
defendant or his
the
(30) days granted
(2) any
thirty
at the
continuance in excess
only
attorney, provided
request
the
the
or his
that
defendant
(30th)
period beyond
day
be so
the thirtieth
shall
excluded.”
past
time
It
be noted
we have held in the
that the
should
that
period during
judge
not be
which
has recused himself should
a
Commonwealth v.
168,
Bellamy,
Pa.Super.
charged
appellant.
254
(1978).
131 forth two which it grounds upon The Commonwealth sets of the court below should be opinion contends that the First, the contends that appel- affirmed. Commonwealth 15, 1976, that on lant’s trial commenced on November date for suppres- below heard motion appellant’s which court contention, To the Common- support sion of evidence. 1100,10 to Rule and Philadelphia wealth cites Comment IV). IV (Phila.R.C.P.C. Pleas Court Rule 600 600 Common Rule 1100 that trial commenc- provides The Comment to “[a] parties es when the trial determines that are judge them to to . proceed and directs hear- present for the of motions which hаve been reserved ing . 600 IV that provides . .” Phila.R.C.P.C. “[a]ll in e. non-major pretrial suppression applications non-jury] [/. in the same hearing criminal cases shall be listed court- non-major room on same as the case scheduled Commonwealth, essence, in contends for trial.” The that motion, viewed in light when Phila.R.C. suppression IV, as a motion P.C. 600 should be classified “reserved for therefore, and, that signal time of trial” trial com- contention, menced under Rule 1100. With this we cannot agree. 1100,
In the
we have held that
under Rule
past,
normally,
when
commences
the lower court ascertains
that
parties
are
and orders
them to
present
proceed
hearing of
motion which had been reserved for
any
trial.
Commonwealth v.
Byrd,
250
378 A.2d
Pa.Super.
921
Lamonna,
see also
v.
Commonwealth
(1977);
Pa.
373
(1977). However,
A.2d 1355
was
holding
expounded
v.
the case of Commonwealth
Taylor,
upon
this court
“[although
proce-
10. This court has stated that
the comments to our
only
interpretation
dural rules serve
as
aids
of those rules and
us,
binding upon
adopted
are not
defini-
we
the Rule
Comment
(citation omitted)”
tion of trial commencemеnt
.
.
Common-
Taylor,
Pa.Super.
wealth v.
985. See also
Byrd,
(1977).
Pa.Super.
254 385 A.2d Pa.Super. will not that a motion which had been reserved for trial unless of trial under Rule 1100 the commencement signify time and “. . .it reflects a commitment of resources directly guilt-determining into the court below leads “Thus, Id., at A.2d at 254 385 process.” Pa.Super. a a motion will mark the commencement of trial hearing on is (1) under the accused warned only adequately Rule 1100 if that has until the time of trial hearing been reserved leads into hearing actually directly guilt-de- Dozier, v. 258 termining process.” Commonwealth Pa.Su- 367, 371-372, (1978). 392 per. A.2d 840 Dozier, As in v. Commonwealth supra, Commonwealth that, in the shows аlthough instant asserts record appeal on motion to was not hearing trial, it reserved for nevertheless did constitute explicitly procedures of because of the estab commencement Rules lished of Criminal Procedure. Philadelphia Dozier, must be However, rеject argument as in we shows that appellant’s suppression cause the record clearly guilt-determining did not lead into the hearing directly days There was a between the process. span thirty himself and the date on on which DiBona recused rights. which waived his Rule 1100 subsequent regаrd Rule 1100 in to trial Since the requirements satisfied, reject commencement were not we must the Com IV, based on Phila.R.Crim.P. 600 argument, monwealth’s “ that trial commenced November timely ‘[A] rule of a adopted by pleas court common procedure cannot as our rules of be used a means circumvent ” Dozier, procedure.’ supra, Pa.Super. 258 at 840, citing at Commonwealth v. 476 Pugh, n.4, Pa. (1978). A.2d n.4 addition, In we recuses judge have held that when pre-trial himself motions reserved following trial, “As soon as time of trial cannot commence. [the case, recused himself frоm the a trial could not judge] case, . . since the judge commence . . In the instant *6 recused himself there was no in this ‘jury’ trial. non-jury Therefore, trial had not . . .” begun Commonwealth 168, 169, 254 Bellamy, Pa.Super. 385 A.2d 580 (1978).
The Commonwealth’s second contention is that appel lant, silent while by remaining the lower сourt continued his case beyond date, the Rule 1100 run waived his Rule 1100 Indeed, rights. the court below came to the same conclu defendant, sion. “The his silence and apparent consent 15, 1976, on November led hearing judge and the Com 15, 1976, monwealth to conclude that the Decеmber him; date was therefore, to he acceptable cannot now claim the rule has been violated.” (Slip opinion 6). at With contention, we cannot agree. This court has considered such arguments the past, and has held that mere silence to a continuance which sets the date for trial the Rule 1100 run beyond date is not sufficient to constitute a waiver of appellant’s Rule 1100 rights.
“The Commonwealth . . . that even if argues is not 17, 1975, deemed to commence until November her appellant waived to relief right under Rule 1100 by failing object when thе lower court announced that the case would not be listed for trial until October 2nd term of court. It is of course true that ‘. . .a defendant waive may or consent to a violation of Rule 1100 his failure to raise the issue.’ Commonwealth v. Lamonna, 473 Pa. 373 supra, [248,] [1355,] A.2d 1358 (1977); Commonwealth v. 468 Myrick, Pa. (1976). nоt, however, It is the defendant’s duty himself
bring
to trial. E. g.,
Adams,
Commonwealth v.
237 Pa.
Super.
(1975).
more,
A.2d 97
Without
appellant’s failure to object to the lower court’s decision to
list the case for trial after the
of the
expiration
mandato
cannot be
ry period
viewed as constituting consent to
noncompliance with Rule 1100.
and citation
[footnote
Commonwealth v.
supra,
Pa.Super.
Taylor,
omitted].”
at
Since trial did not until not his to claim right did waive mandatory period, appellant no periods and there were violation Rule record,11 we must hold that excludable apparent Rule 1100 rights. violated is reversed, and of sentence is judgment The discharged. J., VOORT, dissenting files a statement.
VAN der WATKINS, Judges, former JACOBS President J., HOFFMAN, not the consideration participate *7 decision of this case. dissenting: VOORT, Judge,
VAN der of discharge I dissent from the release respectfully the trial court grounds the in this cаse the defendant 1100. Pa.R.Crim.P. violated is or the procedure issue in this case whether not
The hear- suppression at the conclusion a continuing case any himself from hearing Judge after which the recused ing, the end of which thirty days for a hearing, period further the Run date and to was after period twenty-three days nor his neither the defendant counsel which continuance directly is into the objection, sufficiently leading made any a first in the trial to guilt step determining process of Rule 1100. requirements with prompt the comply pretrial of a motion held hearing have held that the We complies followed immediately by until the of trial case, hearing the on the In the instant with Rule 1100. 15, 1976. At the was on November to motion suppressed physical hearing Judge conclusion of the The suppress appellant’s to confession. but refused evidence n.6, have, previously as in taken into account 11. We noted days September forty-two (42) from 24 to November exclusion by reason of written waiver. in order that another then recused himself Judge hearing testimony hear the case uninfluenced might by hearing Judge The suppression heаring. adduced at objection the case to December 1976. No then continued made nor his day by appellant to this continuance was thirty of the fact that any counsel nor did make issue days the time of trial placed twenty-three this continuance Run date of Novembеr after the finds it hearing Judge I that where a suppression believe participation to himself from further recuse appropriate in the case to a hearing trial and the further postpones Run with the coupled after the date twenty-three days nor his counsel makе any fact that neither the defendant the issue of trial under prompt to such a objection delay waived the defendant. Rule 1100 has been part tried a of this case hearing Judge The suppression he held a motion and made suppression when on the motion. The continuance of ruling thirty day for the benefit of the defendant who trial was ordered he later acquiesced postponement. Thirty days dismiss for failure of the Commonwealth filed his petition him within the 180 as Rule days required by try is what is familiarly The tactics utilized defense After lulling called “sand the Commonweаlth. bagging” *8 into that the continuance believing the defense turns around and says trial was satisfactory, continuance, now if I in this I acquiesce effect “even discharge.” I would hold that my take it back and demand ordered at the conclusion of thirty days continuance appеar to enable the defendant to suppression trial, ac- for the conclusion of his before another Judge defendant, hiatus does not create such an quiesced if it did sever the trial process process as to sever the trial was waived the defendant prompt requirement made no objection proceedings. when he of sentence. I would affirm the judgment