*1 134 concern- question we reach the
Thus,
should
I believe
Further, I think that
arrest.
of appellee’s
ing
legality
proba-
Commonwealth lacked
is clear that the
case law
v.
See Commonwealth
appellee.
cause to arrest
ble
Nicholson,
Pa.Super.
239
Garvin,
v.
Commonwealth
supra;
that the arrest
724
Once we conclude
175,
(1975).
361 A.2d
no
that the statement would
there is
question
was illegal,
471
Barnett,
v.
Pa.
Commonwealth
suppressed.
be
properly
Whitaker,
v.
461
34,
(1977);
COMMONWEALTH BROWN, Appellant. Tyrone N. Pennsylvania. Superior Court June Submitted 29, 1977. June Decided *3 Defender, Public Norris- Jr., Assistant Calvin Drayer, S. town, for appellant. Norristown, for Nicholas, Attorney, T. District
William appellee. JACOBS, and President WATKINS, Judge,
Before VOORT, and CERCONE, PRICE, VAN der HOFFMAN, SPAETH, JJ. VOORT, Judge:
VAN der imposed whether the sentence The issues in this are appeal refused the court (1) be reversed because should in the of found gun drugs and certain evidence suppress tried within the case was not clothing (2) Rules of 1100 of the Rule the time mandated period Procedure. Criminal arrested in a clothing was women’s store on
Appellant to rob the store. allegedly attempting while May store, When he and another man walked into the Carolyn Abrams, time, who was store alone at the operating men, of the behavior suspicious became went into the back room and branch of her telephoned Philadelphia store for The message was help. promptly relayed to the she police. While was still'on the the two men telephone, room, entered back the appellant carrying two bathing suits which he said he wished to As Mrs. Abrams purchase. to write the sales began took a from his slip, appellant gun pocket, it put against said, left side of her ribs and “This is a stick me all At that up, give your money.” moment, the police arrived.
As the store, officer entered the he saw one man in the front of the store and the appellant in the back room with Abrams. Carolyn He went to the back room and asked what the problem was. He received no immediate answer, but observed that Mrs. Abrams looked “white as a ghost” and that appellant’s hands were He also shaking. observed that this back room did not to be a appear part the store where customers were to be and supposed asked to move to the front of the store. As appellant leaving the back room, he to take began off his at jacket and that moment Mrs. Abrams told the officer that appellant gun. had a thereupon officer placed both men against the wall and them down for .32 patted A calibre weapons. chrome-plated Iver Johnson was found in the pistol pocket jacket *4 which appellant had been wearing. arrested, was
Appellant thereupon advised of his rights and taken to police headquarters where a routine search his clothing revealed five plastic bags of methamphetamine, a schedule II narcotic.
A criminal complaint was lodged against on appellant May 7, 1974. He was indicted on 13, 1974, December and tried on September jury 1975. The returned verdicts of on guilty and a violation robbery conspiracy, of criminal charges Act. Substances, Device and Cosmetic Drug, the Controlled were of judgment and in arrest new trial for a Motions this sentenced, whereupon and appellant and denied argued appeal. should be set contends that sentence
Appellant seized at the store which was gun appellant’s aside because his coat was taken from which methamphetamine and the on should have been suppressed station police at pocket without a search warrant. obtained his motion because to a radio in response came to the store The officer circumstances at were suspicious that there call the effect with alone female shopkeeper He found the the store. circum ordinary room where under the back man in the another not be. He saw would stances customers He observed that else present. and no one front of the store that appellant told him She frightened. the woman looked observa and his own on this information had a Based gun. believe that criminal cause to tions, probable he had clearly attempted. of being was in the process had been or activity were lawful and and search the arrest Accordingly therefrom; was admissible. e., gun, i. evidence obtained were also seized properly The drugs found to an were found pursuant since they without a warrant after headquarters in police search inventory appropriate gun that neither the We conclude arrested. of appellant’s in violation obtained were drugs nor in evi admitted were properly rights constitutional dence. trial within to the timeliness now turn
We of Criminal 1100 of the Rules Rule mandated by limits this issue is on which calendar of events Procedure. is as follows: be determined lodged. complaint and criminal 7,1974 Appellant arrested May hearing 17,1974 Preliminary held. May 13,1974 Appellant indicted. December
139 20,1975 January trial, Commonwealth filed a motion to extend time for upon judicial delays beyond based the control of the prosecutor. 21,1975 Hearing on February held try motion and time within which to April the case extended to 30. 10,1975 begin Abrams, March Trial scheduled to Carolyn but the witness, key respond Commonwealth’s failed to to a subpoena and could not be located. On of Commonwealth, the writing to in by consented both counsel, the and his the case was continued unavailability because of the of the witness. 9,1975 September Appellant’s motion to dismiss the case under Rule 1100 dismissed. September 10,1975 Appellant tried and eonvicted. 27,
January Appellant sentenced. The January Commonwealth’s of 20 to extend the petition time for trial was within the 270 commencing filed limit day 1100(a)(1). set Rule The by petition averred that the prose- had cutor certified to Montgomery County Court Admin- on 13, 1974, istrator December that the case was ready an immediate trial but that the Court listing, Administra- tor’s office had never so listed the case. the basis of this On showing due and his diligence by prosecutor inability the case get scheduled for trial within the time limits of Rule the court extended the time for the commence- ment of trial to April of the court to extension right grant such an
because of delays judicial attributable rather system than the prosecutor’s challenged office by appellant. However, this issue has been laid to rest in two recent very decisions Supreme Court Common Pennsylvania: wealth v. (October 8, 469 Pa. Mayfield, A.2d 1976); Shelton, Commonwealth v. 469 Pa.
(October 8, 1976). In it was Mayfield ruled that squarely 1100(c) Rule should be a trial interpreted permit court to grant timely application by Commonwealth to extend the prescribed time for trial the sole ground that the period prescribed trial within schedule the
court cannot the Rule. *6 : elaborated in Shelton upon ruling The rationale of an that an of the Rule states (c) “Section if trial cannot be com- only extension ‘shall be granted due diligence period despite the prescribed menced within ” the Commonwealth.’ by clearly in the of the Rule context “The ‘Commonwealth’ the judiciary. officers and not to prosecutorial refers to to attempt does not read, simply the Rule quite Literally to the judici- due eliminating delay of problem solve the lack of due to delay to eliminate rather, it attempts ary; officers. Fur- prosecutorial part on the due diligence extension, an does not thermore, justify if ‘judicial delay’ of the unavailability where because then in a situation a to commence trial at court before whom a or a judge mandatory period, of the expiration time to the prior exercise of all due diligence despite Commonwealth a a Such prosecution. unable to effectuate would be a exception nullity the due diligence result would render rule of construction that contrary and is therefore construed, if to possible, give be ‘[ejvery requires to] [rule ” all its effect to provisions.’ the legal consequence consideration There remains for on March the Commonwealth the continuance granted commence, of the because was scheduled trial day a witness to answer key failure of the Commonwealth’s to locate her. of the inability prosecution and the subpoena in have been justified trial court would Clearly circum of time under these extension a second granting its due dili established stances, having the Commonwealth since proceed previ announced readiness its gence by for an ex However, instead of petitioning December. ous a and was granted moved for tension the Commonwealth indicate Documents in the record continuance of the trial. that defense counsel consented1 the continuance and ato waiver of Rule 1100 a written by notation on motion for continuance. Defendant also appears to have his given consent, based our of a upon signed review form he and the findings lower court at trial a discussion of during this issue with counsel. It ruled in Common recently wealth v. Myrick, Pa. 360 A.2d 600 (1976) that Rule 1100 might be waived such signed a statement in the record. We hold that such waiver in was established this case.
Affirmed.
PRICE, J., files a dissenting opinion which HOFFMAN SPAETH, JJ., join. *7 PRICE, Judge, dissenting:
The
in the
was
complaint
instant case
filed
the
against
7,
on
Commonwealth
appellant
May
1974. The
was there-
fore obliged under
to
the
1100(a)(1)1
bring
Pa.R.Crim.P.
appellant
3,
to trial
270
within
or
1975.
days,
by February
Trial, however, did not begin
9,
until
1975. The
September
Appellant argues
appeal
1.
on
that his counsel was ineffective for
providing
Appellant
represented
such
by pri-
consent.
was
at trial
vately
motions,
attorney
post-trial
retained counsel. An
associate
that
filed
case,
appellant
but then
from
withdrew
the
after which the
represented by
was
public
a
defender.
to
Leave
file additional
reasons for a
judgment
granted
new trial or for arrest of
was
to
appellant by
17th, 1975,
September
order of the court below dated
however no additional reasons were filed. No claim of ineffective
any
by any
counsel was
attorney
raised at
time
defense
before the
lower court. The
post-trial
lower court’s denial of
motions occurred
appointment
public
several weeks after the
of the
defender. More-
over,
post-trial proceedings
all
in this case
after the is-
occurred
Dancer,
95,
suance of such decisions as Commonwealth v.
460 Pa.
(1975)
105,
331
Twiggs,
A.2d 435
and Commonwealth v.
331
Pa.
(1975).
A.2d 440
Accordingly, it is clear
the
that
claim of ineffective
preserved
counsel herein
be
properly
must
held to have not been
for
Hubbard,
appellate
472 Pa.
at
review. See Commonwealth
(1977).
p.
5,
p.
275 n.
694 n.
embodied in Rule contention. 20, 1975, to the prior that on January
The record shows the filed Commonwealth period, expiration prescribed for trial. to extend the time See Pa.R.Crim.P. petition The form to extend al- petition Commonwealth’s 1100(c).2 to prepared proceed that the to leged Commonwealth to do the Administra- trial, but was unable so because Court tor had failed to list the Montgomery County case 21, 1975, below, trial. On the court after a hear- February 30, 1975, allowed the until to ing, April Commonwealth 1975, trial. 10, the March the Com- bring On trial be requested by monwealth form that contin- petition an ued Common- unavailability important due witness. the Commonwealth’s Although application wealth court, the the for a continuance was lower signed by appel- 10th, on March the lant, counsel and appellant’s the lower court until August 26, was not docketed in the one after filed a motion to dismiss day appellant’s Pa.R.Crim.P. 1100(f).3 charges pursuant was denied the court below Septem- motion dismiss ber when trial began. reasons, various the action of majority
For affirms below. Before differences with discussing my court I note rationale of am constrained to majority, court, in equates lower its Common- opinion, mistakenly *8 an wealth’s March 10th motion for a continuance with 1100(c) provides pertinent part: 2. Pa.R.Crim.P. in any prior period for expiration commence- “At time to the of the trial, attorney may apply the for the ment of the Commonwealth extending of trial. court for an order for commencement the time only application granted be . Such if trial cannot . shall be diligence despite by prescribed period due the commenced within the specify Any granting application shall such Commonwealth. order period be which trial shall commenced.” the date or within part: 1100(f) provides pertinent in Pa.R.Crim.P. trial, attorney may any apply or “At time before the defendant his charges dismissing prejudice on the to the court for an order the with ground this has been that Rule violated.” 1100(c). for an application under Pa.R.Crim.P. extension same, The are the in differing substantially legal two not Kincade, effect. Pa.Super. See Commonwealth of part Rule the delay Under no (1976). continuance Com- in trial the of a by grant caused the of the computation be from may monwealth excluded continuance to or agreed unless the prescribed period his caused the or See Pa.R.Crim.P. by counsel. hand, (c) the other of Rule (2)4 and On Section 1100(d)(1) that the Commonwealth be an provides may granted of it extension time for trial if can demonstrate that trial cannot be commenced within the time its prescribed despite due note diligence. supra. any See Moreover order by Commonwealth’s the lower court granting request the for an extension of time the or specify must date of time period within which trial shall be Compare commenced. Pa.R. Here, with 1100(c) 301(a).5 Crim.P. Pa.R.Crim.P. the record shows that for or order such no extension petition granting ever papers extension was filed other than those pertaining to the order February 21, of extension dated 1975. The Commonwealth’s motion of 10th was undeniably March a request for a a continuance a time petition not extension.
The that finds majority appellant abandoned absolute- any rights Rule 1100 ly consenting under in writing the Commonwealth’s March 10th request for a continuance. 1100, like the Certainly, right a trial which speedy “[r]ule it protects, be waived.” may Myrick, Commonwealth v. 1100(d) provides: 4. Pa.R.Crim.P. determining period trial, “In of for commencement shall there be delay excluded period any stage therefrom such of at of the proceedings as results from: (1) unavailability attorney; of the or his defendant (2) any thirty (30) days granted continuance in excess at the request only attorney, provided defendant his or period beyond day (30th) be thirtieth shall so excluded.” 301(a) provides: 5. Pa.R.Crim.P. may, continuance, justice, grant “The court the interests of motion, own or party. its on the of either shall court identify moving party the record and state of record the justifying granting court’s reasons or denial the continuance.” *9 144 however, record, 155, 159, 598, (1976). 360 A.2d
Pa. consent that the appellant’s conclusion majority’s belies the consent constituted for the Commonwealth to a continuance his case to trial. in delay bringing to an indefinite that the on the record must establish The Commonwealth Rule 1100 was volun- rights his waive decision to appellant’s Here, v. Myrick, supra. Commonwealth and informed. tary a for contin- request its form predicated the Commonwealth witness. The unavailability key the uance solely upon witness that the established record, however, conclusively trial, for and available in County, was present Montgomery in the date, delay that the reason for 19,1975. On on March to that ended. trial, delay, consent appellant’s and the the record to demonstrate in nothing There than the nine in trial other any delay to agreed the Common- caused the absence of day period delay wealth’s witness. dismiss, the to on the motion appellant’s
At the hearing bring appel that its failure to explained Commonwealth 9, 1975, 1975, until 19, September March lant to trial from Mont space of available courtroom was due to the lack of delay can exclude the period While we gomery County. the calcu consented, nine from days, which the appellant to time, we cannot so exclude periods the prescribed lation of Commonwealth judiciary. attributable delay Pa. aff’d 469 195, (1976), Shelton, 239 Pa.Super. Under the 1100(d). (1976); Pa.R.Crim.P. 8, 364 A.2d 1975, 21, dated February of the extension order terms to trial to required bring Commonwealth when the 30, 1975. On August by April dismiss, had al mandatory period filed his motion this date “. period beyond exceeded. Any been ready man computation either excluded from must be [of an order grant or [1100(d)] justified by under datory period] if the Commonwealth [1100(c)], an extension pursuant ing is to prevail.” Commonwealth v. O'Shea, 491, 496, 350 465 Pa. apply failed The Commonwealth (1976). A.2d have, and time, as it should assuredly extension of a second *10 the exclusion of nine fails to account days the entire I would period delay. therefore order the appellant discharged.6
HOFFMAN SPAETH, JJ., join in this dissenting opinion.
Philadelphia District.
Submitted Oct. 1976.
Decided June 1977. my opinion I have assumed in had in that fact waived rights regard delay period his Rule unavailability caused However, validity of the Commonwealth witness. appellant’s beyond question. petition of the consent form is not containing request, appel- the Commonwealth’s continuance and the thereto, woefully incomplete. lant’s consent the is It true that both signed petition and his counsel the Commonwealth’s However, and that “waive 1100” is scrawled above counsel’s name. appellant’s petition, required, counsel failed to note on the as opposed he was not to the continuance. The himself failed petition, required, objection to indicate on the as that he had no And, petition the continuance. the lower court failed to mark on the application fact, granted whether the or denied. In the record officially August shows that the was not docketed until 26, 1975, long expiration mandatory period. after the In Ray, Pa.Super. (1976), Commonwealth v. we strong disapproval wretchedly noted our form incomplete of the use of petitions for time extensions under Rule 1100. The use of similarly petitions afflicted continuance must also be condemned.