*1 406 A.2d Pennsylvania COMMONWEALTH Carter, Appellant. HALL James Drake a/k/a Pennsylvania. Superior Court 15, 1979. June 31, 1979. Appeal Denied Oct. Allowance of Petition *3 Defender, Chief, Appeals Packel, Public Assistant John W. for Division, appellant. Philadelphia, Chief, Ap- Lawler, Attorney, District Robert B. Assistant Commonwealth, appellee. Division, Philadelphia, peals HOFFMAN, CER- JACOBS, Judge, President Before HESTER, VOORT, CONE, PRICE, VAN der SPAETH JJ.
HESTER, Judge: was convicted Hall, James Carter Drake a/k/a Philadelphia of Common Pleas in the Court jury aby *4 post- denial of Following robbery. count of of one County of ten maximum term motions, was sentenced to a he trial followed. appeal This direct imprisonment. to twenty years March On following. trial established the Testimony was in his victim, Phillip Skipworth, 43 year-old on Farragut his brother Street home he shared with afternoon, and appellant during Philadelphia. Sometime for to the door and asked came an unidentified individual was not at home Although Wilbur Wilbur. brother Phillip’s two men into the house time, admitted the Phillip at that point, appellant’s At this upstairs. them and accompanied him with an hands, threatened Phillip’s bound companion his him lie on a bed. and bar, Appellant forced iron and clothes, set, TV and “a few more removed confederate then was soon Phillip fled. quickly from the house and things” summon aid. was known Appellant free himself and able to Skipworth occasional of Wilbur companion as an Phillip officers investigating readily supply and thus could Phillip warrant and An arrest description. with name until not served on next but was day, issued the months later. nearly five Skipworth he was indeed at the testified that
Appellant and one 5,1976 Phillip in the company March residence on without Allan and premises left the Appellant James Allan. and taken Phillip Allan had threatened later that discovered elud- admitted to Appellant from the house. several items aware because he was for five months the authorities ing him, any participa- for but he denied looking were police in the robbery. tion he is entitled to a dismissal first contends him bring the Commonwealth did not
of all because charges 1100. At a time Pa.R.Crim.P. required by to trial within the counsel raised the trial hearing, prompt pre-trial suppression had since long the 180 time limit day issue orally, suggesting This mo discharged. be and that should expired not been think the Rule 1100 claim has tion was denied. We it and not in presented orally since was properly preserved pretrial “All motions requires: Rule 306 writing clearly as Moreover, Rule . .” writing shall be in . for relief to dismiss must be application 1100 itself that an implies upon shall be served copy of such application written: “A ” . . . Rule the Commonwealth attorney written added). The reason for requiring 1100(f), (emphasis A writing crystalizes motions is well settled. pretrial ensures that the for relief and upon relied specific grounds trial, Commonwealth, courts will know appellate raised, response a focused allowing contentions precise *5 209 1, Pa.Super. 375 v. 249 Kinsey, Commonwealth decision. case, Rule 1100 issue was the 727 In the instant (1977). A.2d following afterthought as an the defense counsel raised brief, curso- The matters. on other hearing lengthy pretrial counsel court and the between which ensued ry discussion motion, written for a prior, contrast the need illustrates by positions their prepare to allowing carefully both sides concrete, to the court. arguments to well-reasoned present important treatment of cavalier We cannot such accept Rules, and thus hold below, of the issues in derogation to file by failing has his Rule 1100 claim waived See, v. Commonwealth to dismiss. application written Webb, 429, (Opinion A.2d 25 254 386 Pa.Super. Affirmance). Support of the Com- competency the challenges next
Appellant witness, Phillip, age Skipworth. chief Phillip monwealth’s diffi- 43 some epileptic, experienced at time of trial and an understanding questions the preliminary culty to the recalling germane certain facts posed to Mm and Phillip the determined hearing, incident. At a court pretrial competent testify. of a witness is a competency we note the
Initially
and is not revlewable
the
to determine
matter for
trial court
of discretion. Common
the absence of a clear abuse
258
Ware,
(1974);
wealth v.
Pa.
329 A.2d
Common
459
(1948).
wealth
The between and the following colloquy Phillip trial court demonstrates was well aware of his amply Phillip under oath: obligations while
Q. just ago Do know what did a when the you you man came hand on that book? you put your over Do know what did? you you A. Yes. me, Tell what
Q. did do? you A. I swore.
Q. ahead. That would do what? Right. you Go A. Tell the truth. now,
Q. telling You’re me the truth aren’t you? Yes, A. I am. Were
Q. involved in an incident back on March you 1976? are here Why you today?
A. To right tell fellow that robbed me. you Q. words, In other here to tell me about a rob- you’re is that what
bery; you’re saying? Yes,
A. I am. Now, difference Q. right know the between you
wrong, don’t you. Yes,
A. I do. And if and a Q. testify allowed before me you’re jury tell you twelve would them the truth? people, Yes, A. I will.
Q. Would know.what would if didn’t tell you happen you
the truth?
A. I sent to probably get prison. 10/15/76, Hearing of 13-14.
Competency pp. This Court has fear of incarceration as previously upheld sufficient to establish duty the consciousness of the to speak the truth. Mangello, supra, (five victim’s belief year-old
211
Com
sufficient);
held
“go
jail”,
tell lies
who
people
Ault,
(1974)
(witness’ statement 341, 378 Hughlett, lied); Commonwealth *7 if would to hell” (witness’ “go statement she (1977) A.2d 326 also, v. Roma Commonwealth truth). she didn’t tell (1978); Commonwealth noff, 258 Pa.Super. (1975); Allabaugh, A.2d 189 Morin, 237 Pa.Super. deficiency where a in the not a case supra. This is thus to inability comprehend the witness’ witness’ responses to our courts conclude has led telling of truth the necessity v. Mazzoc competent. the witness was not did stated he (1977) (witness coli, A.2d 786 it is and later stated if he lied happen not what would know Rimmel, 221 lie); tell right to in record that (no young indication difference between comprehend female witnesses could be would falsehood; they witness’ statements truth and lied, if held they “beaten”, and “hollered at” “punished”, oath; taking an understood nature they sufficient to show its in Common and confined to facts Rimmel was criticized 202, 378 A.2d Mangello, supra, wealth v. no doubt that case, In the record leaves (1977)). the instant could distin of an oath and understood the nature Phillip it was We cannot say truth and falsehood.1 guish between exchange following between defense Appellant 1. us to the directs Phillip’s vitiating Phillip competency as and counsel understanding oath: find him competent.2 for the court to an abuse of discretion relates to alleged of error next averment Appellant’s verdict. The of one as to the juror on the part confusion for, was tried addition are these. facts assault, and burglary, conspiracy. of simple counts robbery, deliberations, the forelady from its When the returned jury assault, burglary, verdicts as to guilty announced the not A poll as to robbery. verdict guilty conspiracy, bill and the guilty defense as to the was requested by Juror Number One: with occurred following exchange Forrest, one, Annabelle Juror number COURT OFFICER: rise. please 1317, October Number Ses- Bill of Information
This
how do
with
robbery,
the defendant
charging
sion
guilty?
or not
guilty
you say,
Not guilty.
NUMBER ONE:
JUROR
If the Court please—
COUNSEL]
[DEFENSE
minute.
Just a moment.
—Wait a
THE COURT:
you
you got
attorney
on the witness
before
Q. Did
district
tell
truth,
you
you
jail
tell the
stand
the Bible to
when
swore on
go
you
if
didn’t tell the truth?
would
Yes, he did.
A.
Judge
going
you
attorney
Q.
or the
Did he tell
the district
district
you
the Bible? Did the
ask
what it meant to swear on
attorney
you
tell
that?
already.
A. I knew
10/15/76,
Hearing
pp.
Competency
20-1.
supra,
all,
Payton,
we
rejected
where
similar claim
First of we
punished
he will be
tells the witness
noted it does not matter who
*8
concept
punishment.
lying
long
“It
of
so
as he understands
inappropriate
compare
where the
this with a situation
would be
to
give
questions
Attorney
to
what answers
District
directly
tells a witness
Further,
Payton,
we
213 I mistake. made a ONE: JUROR NUMBER charges. understand the doesn’t She [FORELADY] rise? please Would you THE COURT: Yes. JUROR NUMBER ONE: how do you is you The asked question
THE COURT: of robbery? charge on the find the defendant Guilty. JUROR NUMBER ONE: 10/21/76, N.T. of 302-3. pp. without inci- jurors remaining proceeded of the polling
The
requested
thereof defense counsel
and
the conclusion
dent
confusion.
possible
Number One’s
into Juror
inquiry
further
as-
now
request
The court refused counsel’s
We
not agree.
as
do
that refusal
error.
signs
tried
that a criminal defendant
It
is fundamental
before a
to a unanimous verdict
a
is entitled
jury
before
9;
1,
6,
Pa.R.
Pa.Const. Art.
Secs.
is proper.
conviction
Conner,
282
v.
Commonwealth
1120(b);
Crim.P.
Pemberton, 256 Pa.Super.
(1971);
Commonwealth v.
See,
v.
406 U.S.
Oregon,
(1978).
Apodaca
389
1132
A.2d
ensure this
(1972).
We think it clear the instant case must fall into the latter of cases where a category subsequent unequivocal prior assent to the vote cures defect in a majority any Juror One’s initial answer was followed response. Number her she was mistaken and immediately by acknowledgment her nothing correction of her verdict. There is unhesitating with disagreed in the record to show the juror majority, Watson, as require or that she was so confused clarifica Corbin. tion and options, from the court as to her duties *10 and the correction was Rather, the was inadvertent error from the any herself without influence made the juror The court thus present. properly or else court anyone of the interrogation for further request refused counsel’s not unanimous that the verdict was and the contention juror is without merit. the court erred in not argues
Finally, of possible for because his a continuance request granting veniremen from which panel appel-' the of among prejudice week one-half before chosen. A and lant’s were jurors case, in in the instant he was convicted trial appellant’s of by jury conspiracy, Pleas Court Philadelphia Common crime, the and After robbery. instruments possessing trial, in the the judge congratulated jury verdict that prior read to them conviction record robberies. appellant’s case, the instant counsel contin requested Prior to trial in uance, jurors prior the in the trial have that opining may veniremen, pool of discussed appel back to gone general the the with and that colleagues, jurors and his record their lant polluted this instant trial were selected from appellant’s in The court refused the continuance. pool. is speculative that appellant’s
The record shows contention is There supportive at best and in evidence. wholly lacking from showing pool that the of veniremen no affirmative the in first trial were chosen was jurors appellant’s which which in second pool jurors the same from the appellant’s dire, Further, during panel were voir trial selected.3 if asked knew and none collectively they was the matter further in his pursue did not responded. Counsel in transcript which nothing individual and we find voir unless, only required at time were to serve two weeks 3. Jurors that time, they midst of a of their were in the trial. at conclusion pretrial hearing he did know Counsel conceded jury panel the first was from which whether veniremen Hearing discharged. empaneled had been selected was still conjecture 10/18/76, p. based on the 42. His motion was comprising appellant’s panel be used still extant would upcoming jury trial. would lend to the any support contention that the panel was tainted from trial.4 prior Judgment of sentence affirmed.
CERCONE, President Judge, concurs in the result. SPAETH, J., files a dissenting opinion which HOFF- MAN, J., joins.
JACOBS, former President did not Judge, participate in the consideration or decision of this case.
SPAETH, Judge, dissenting: *11 asserts the that lower court erred in refusing to dismiss the charges him against because the Commonwealth violated 1100(a)(2), Pa.R.Crim.P. 19 P.S.Appendix (1977).1 5, 1976,
On March
complaint
a
was filed against appellant
him
charging
with robbery,
assault,
burglary,
simple
and
criminal
An
conspiracy.
arrest warrant
issued the next day.
however,
Appellant,
4,
was not arrested until August
1976.
He was given a
on
preliminary hearing
August
and was
13,
on
arraigned
September
15,
1976.
1976,
On October
was held on
hearing
appellant’s motion that
the victim
should not be allowed to
at
trial because he
testify
was
mentally incompetent.
denied,
This motion was
and defense
motions to suppress the victim’s identification
and for a
dismissal of the
1100(f)
under Rule
charges
were heard on
clearly
4.
proof
This is thus
not a case where there is
that veniremen
participated
defendant,
prior
had
in a voir dire for
trials of a
Com
Free,
492,
monwealth v.
Pa.Super.
When
mandatory
that the
argued
he
1100(f),
Rule
under
charges
on March
began
of Ms trial
the commencement
period
issued,
September
ended on
arrest warrant
the date the
period,
within that
did not commence
Ms trial
Because
6.2
unless it
discharge
to a
was entitled
claimed that he
he
diligence
exercised due
had
that the Commonwealth
shown
argued
case. The Commonwealth
Ms
prosecuting
date
August
not
until
begin
did
period
the mandatory
not
the lower court did
Although
was arrested.
it denied
why
state
explicitly
the Com
accepted
court
motion, it
clear that
appears
until
begin
did
period
that the
argument
monwealth’s
doubt,
was,
erroneous.
without
ruling
4. This
August
“[l]n
is
to a court and a
complaint presented
the situation where
Rule
period
mandatory
warrant issued .
.
.
[under
*12
Com
presentation.”
with the
running
commences
1100(a)]
826, 829
558, 559,
A.2d
Mitchell,
Pa.
372
472
monwealth v.
however,
motions,
appellant’s post-trial
In
on
(1977).
ruling
the date from
4 as
upon August
did not rely
the lower court
appel
to find that
commenced
mandatory period
which the
to testimo
Instead, the court looked
timely.
lant’s trial was
period
of when the
held that regardless
taken
trial and
at
ny
the
for trial until
unavailable
run,
was
appellant
to
began
extending
period
arrest,
automatically
Ms
thus
date of
1100(a)(2)provides:
case in which a
“Trial in a court
2o Pa.R.Crim.P.
30, 1974
against
after June
complaint
the defendant
written
is filed
eighty (180) days from the
hundred
commence no later than one
shall
date on
complaint
which the
is filed.”
September
eighty days
6 is
from March
One hundred
hearing.
September
at the
6 as
asserted
which the
was
during
required
try
Commonwealth
him.3
trial,
At
that he knew several days
testified
after
arrest,
that a warrant had been issued for his
incident
to avoid the authorities he used an assumed name.
and that
told the
that he was afraid of
arrested
jury
being
not because he was
but because he was afraid that he
guilty
would be convicted on the basis of his
record. I believe
prior
that the lower court erred
on
taken at
relying
testimony
trial to hold that
trial commenced within the
appellant’s
by Rule 1100.
period prescribed
has held that “the
The
Court
Commonwealth has
Supreme
requisites
(d)
the burden of
of
in order
proving
Section
preponder
itself of
exclusion and must do so
aby
avail
an
Mitchell,
v.
supra,
ance of the evidence.” Commonwealth
also
Pa. at
(1977); 1100. The lower Comment to Fa.R.Crim.P. (1977); diligence by the issue of due entirely court ignored points his out candidly brief police. Appellant two weeks of that within detective testified at trial police appel warrant on he tried to serve the arrest the incident Appel success. lant home three times without at his the lower court added this at 20. But even had lant’s Brief *14 220
fact to its
it nevertheless would have been in error
opinion,
taken at trial
to find due dili
considering
evidence
any
the detective
gence.
subject
The trial
was not
testimony by
on the issue of due dili
to cross-examination
by
gence.
Nor was
entitled to follow the detective’s
argument.
with his own
For all we
testimony
proof
know, a full
reveal
that
had solid
hearing might
police
whereabouts,
leads as to
which
failed to
appellant’s
they
Clark,
v.
supra
Cf. Commonwealth
(“Once
the Com
pursue.
is,
monwealth knows where the defendant
it then has the
diligence
bringing
trial.”)
to act with due
him to
duty
notes, however,
ap-
As the
the consideration of
majority
Rule 1100 claim does not end here.
pellant’s
Although
lower court
not consider
motion for
did
whether
charges
dismissal of the
under Rule 1100 was
there is
timely,
issue sua
sponte.
question
no
that we
raise that
may
Martin,
Commonwealth v.
609,
n.4,
479 Pa.
613
388 A.2d
1361,
(1978).
1100(f)
1364 n.4
Rule
limits the time within
which a defendant
for an order
may apply
dismissing
him to
time before
In
charges against
“any
trial.”
deter-
whether a defendant has made his motion
mining
prior to
trial, we
explanatory
refer
to the
comments to Rule
may
Lamonna,
Commonwealth v.
1100(f).
248, 259,
473 Pa.
373
1355,
(1977) (concurring opinion
EAGEN,
A.2d
1360
C.
Perkins,
Commonwealth v.
J.);
116,
It is not intended that calendar calls should preliminary constitute commencement of a trial. A trial commences when the trial determines judge parties are dire, them and directs to voir or to present proceed or to motions which opening argument, hearing any trial, had been reserved for the time of or to the taking or to some other such first in the trial. testimony step We have if a defendant fails to a Rule present held 1100(f) motion before the hearing of motions reserved for he loses his Rule 1100 rights. Common- trial, time of 249, 253-254, 389 A.2d Weber, wealth 256 Pa.Super. (1978). We have also held that “a on a motion hearing will mark the commencement of trial under Rule 1100 only if the accused is warned that the has (1) adequately the time of trial and the hearing been reserved until process.” leads into the actually directly guilt-determining 371-372, Dozier, Commonwealth v. Brown, (1978). A.2d Accord: Commonwealth (1979). *15 case, In the the record fails to show that present appel- lant’s motions were reserved for the time of explicitly trial. However, because case arose in Philadelphia, argu- this an on hearing appellant’s ment be made that might sup- the commencement of pression motion constituted trial be- cause of the promulgated by Philadelphia local rules of provides: Court Common Pleas. Phila.R.Crim.P. 600IV Pretrial for of identi- suppression applications suppression fication evidence in homicide cases major and shall be listed for in the same courtroom and on the same date as major or homicide case is scheduled for trial. conjectured See Phila.R.Crim.P. 605. We have in the also circumstances, that under some past “[pjerhaps, the Com- monwealth might provides assert that this Rule persuasively trial, a defendant with adequate notice that for purposes 1100, Rule will commence with his suppression hearing.” Dozier, Commonwealth supra 372, v. 392 Here, however, A.2d at 840. is in nothing there the record to enable me to with say any that the Rule certainty provided with I such notice. cannot Accordingly, deem appellant’s 1100(f) that Rule motion was untimely.4 notes, as the
Finally,
majority
appellant’s motion was
presented
1100(f) implies
to the court. Pa.R.Crim.P.
orally
course, untimely
4. Of
motion was not
because it did not
comport
required,
with Pa.R
which
before its amend-
Crim.P.
pre-trial applications
ment
relief be submitted no
for
days prior
requirement
later than ten
The
of Pa.R.Crim.P.
to trial.
by
“implicitly superseded
purposes
305 was
of Rule 1100
section
Lamonna,
supra,
(f)
the latter rule.” Commonwealth v.
473 Pa. at
n.8,
that motions mo pre-trial all requires which also Pa.R.Crim.P. See has in the over split past This court writing. tions to be in his Rule may preserve a defendant of whether question Commonwealth motion. See an oral rights through To (court 3-3). split Webb, the issue. to resolve yet has date, Court Supreme 3, 388A.2d 613 n. 479 Pa. at Martin, supra Commonwealth the circumstances however, that under believe, at 1363n.3. I raising his by his rights case, preserved of this The pur of trial. the commencement before orally motion is to inform application a written requiring pose contentions of the specific and the court response that a focused to raise so defendant intends in the was not frustrated That purpose decision follow. may Ap motion. of appellant’s the oral nature case present the Rule under mandatory period that the pellant argued unless it trial was untimely and that his on March began diligent had been the Commonwealth was shown that with responded The him to trial. bringing the man discredited, argument but since the plausible, *16 of appellant’s until the date begin did not datory period was The lower court arraignment. preliminary arrest and evidently argument, the Commonwealth’s persuaded by argued clearly framed and been that the issue had believed instead of the issue itself decide so that it could enough re Judge to the Calendar as motion referring appellant’s Philadelphia of the Court rules the local under quired Pleas.5 Common provides: Phila.R.Crim.P. 620
5. Felony Jury cases are petitions and Homicide (A) for Rule 1100 will be listed for room and appropriate to in the calendar be filed presents Judge. an by the defendant hearings Where the Calendar Judge, the matter shall be the Trial dismissal before oral motion for disposition. Judge immediately to the Calendar referred wealth Judge specifically (E) are to be held Hearings petitions on defense [*] for extensions only by designated for such [*] petitions [*] appropriate of time [*] for dismissal purpose. under Rule [*] Calendar [*] or for Common- 1100 or Rule Judges by has been satis- application of a written purpose Since to me we case, why not apparent it is present fied in the rights by Rule 1100 waived his appellant hold that should that the Com- holding than rather orally, his motion raising to failing the Rule by under rights waived its monwealth the time it motion at appellant’s the oral nature to object objec- made a timely the Commonwealth was made. Had his perfect opportunity had the have tion, would appellant We would of trial. commencement before the application assert the Commonwealth allowing injustice by work an no cure the longer can is, appellant after trial, that after his rights by presenting his defect, waived that to the consented the Commonwealth motion when orally I should not it was made. at the time form of the motion believing defendants into to lull allow the Commonwealth in situations except rights their preserved that have they has been processes own judicial of our integrity where the rules. Here appel- with the non-compliance infringed by argument by parties subsequent lant’s motion and the shows record. The record for the were transcribed fully framed, argued, clearly the Rule 1100 issue Commonwealth had the court. The decided the lower time appellant at the proper objection chance to present so, argued do and instead failed to made his motion. It circumstances I In these on the merits. against the motion rights Rule 1100 sponte not hold sua appellant’s should his motion oral- made forfeited because have been Webb, writing. in rather than ly Reversal). J., Support supra (HOFFMAN, Opinion that the concluded at the Because the lower court until August did not commence 1100(a)(2) in Rule period pursue lower court did not and the the Commonwealth diligence used due into the Commonwealth whether inquiry a fully trial. we are without Since bringing appellant issue, I should vacate record on this developed *17 evidentia- the case for an and remand of sentence judgment 1100 claim. Rule on ry hearing HOFFMAN, J., dissenting opinion. in this joins