*1 accused be informed before of which the must a fact parole, Berry See may validly accepted. e.g. guilty plea 1969). States, (3rd Myers Cir. United F.2d trial. therefore, and remanded for a new reversed case can be Myers in the reasoning We find In view appeal. the instant applied to that appellant’s guilty we conclude Kulp, Court’s directive since entered understanding^ plea knowingly of the maximum punishment he was not fully apprised was possible. trial. for new
Reversed and remanded Pennsylvania, COMMONWEALTH MACHI, Appellant. Mark A. Pennsylvania. Superior Court of Jan. 1981. Argued Jan. Filed *2 Wiedt, III, appellant. for Pittsburgh, Karl W. Mericli, District Attorney, Assistant Kamali Alexander Commonwealth, appellee. Pittsburgh, for MONTGOMERY, JJ. SPAETH, SHERTZ Before SPAETH, Judge: operat of sentence for judgment
This is an
from a
appeal
he
not tried within
that was
argues
ing lottery. Appellant
1100.1 We have con
Pa.R.Crim.P.
required
not,
discharged.
order him
he
and therefore
cluded that
was
timely
A
on
February
was filed
complaint
filed,
be heard
and was scheduled to
motion to suppress
prior
trial.” Order
trial, immediately
“on the date of
record).
included
1,1978 (not
reproduced
Court dated June
17, 1978, and
that date
for
on
July
Trial was scheduled
*3
issue
suppress.
to
central
lower court heard the motion
of
Police
Pittsburgh
the
constitutionality
concerned the
then
before the
Court,
pending
a
Magistrate’s
question
states that
“postponed
Court. The lower court
Supreme
of defense counsel
request
of trial
commencement
and Defendant
the Commonwealth
upon agreement by
”
. . . .
Supreme
Court
until a decision was rendered
was
180-day
for the
at 4. The run date
Slip op.
24,
later, on
27,
January
About six months
August
1978.
1979,
of
upheld
constitutionality
Court
v.
ex rel. Paulinski
Commonwealth
Magistrate’s Court.
denied,
918, 99
Isaac,
467,
760, cert.
442 U.S.
483
397 A.2d
Pa.
later,
2841,
(1979). A month
on Febru
341 for argues pur The Commonwealth Rule 1100 poses, trial commenced at the appellant’s beginning 17, 1978, on over July something month before the run date.
Rule 1100
to this
speak directly
pro
does
argument,
viding
Rule,
only that
this
trial shall
purposes
“[f]or
be deemed to commence on the date the trial
judge calls
case
trial.”
our
interpretation
this provision
Comment,
is aided by the
which we
in Common
adopted
wealth
250,
v.
250
Ct.
378
921
Byrd,
Pa.Superior
(1977),
A.2d
178,
rem’d on other
493
(1981).
Pa.
It is not
preliminary
intended that
calendar calls should
constitute commencement of
trial. A
trial commences
when the trial
determines
judge
parties
are
present and directs them to
proceed
dire,
voir
or to
opening argument, or to the hearing of
motions which
any
had
been reserved for
the time
or to
taking
or
testimony
to some other such
step
first
the trial.
In discussing this definition of
trial,”
“commencement of a
Chief Justice EAGAN in
Lamonna,
248, 260,
Pa.
(1977)
(concurring opinion),
*4
concluded
“first
language
step
the trial” means
“the beginning
stage
of
which leads
any
directly into the
process.” This
guilt-determining
conclusion became
part
the test formulated
us in Commonwealth
Dozier,
v.
258
Pa.Superior
367,
(1978),
Ct.
Thus, on a motion will mark the hearing commencement of a trial (1) under 1100 if only Rule the accused is warned adequately has been reserved hearing until the time of (2) trial and the hearing leads actually into the directly guilt-determining process.
342 371-2, at 840. at 392 A.2d
Id., 258 Pa.Super.
satisfied, for
Dozier test was
as
Here
first
of the
part
1978,
above,
1,
the lower court ordered that
noted
on June
“on the date of
was to
heard
the motion
suppress
Jackson,
v.
to trial.” Cf. Commonwealth
immediately prior
4,
n.
4,
n.
396 A.2d
693
262 Pa.
at 157
supra
Super,
“to advise
(notation in record found inadequate
signal
his
would
com-
here that
motion
suppression
Dixon,
v.
262
trial”);
mencement of his
Commonwealth
(remand to deter-
161,
(1978)
Ct.
The correctness of this conclusion is
aby
confirmed
review
of cases in which we have held that
the Dozier test was
satisfied.
In each such case the actual
trial was so soon
after
the two could be viewed
Whitner,
as a unified whole.3 Commonwealth v.
278 Pa.Su
175,
perior Ct.
Our conclusion that trial appellant’s did not commence with the suppression hearing not, however, does end our deprive jurisdiction proceed effect was to the lower court of with Here, contrast, the trial. in the Commonwealth took no action equivalent filing could sion considered the functional for an exten- time, jurisdiction remained with the all lower court at
times. sense, chronological sup- “Unified” in a sense. In a functional pression hearing guilt-determining process cannot “lead into” the part way process simply because it is not of that but is LaFave, administering exclusionary rule. Search & Seizure: A (1978). Referring Treatise on the Fourth § Amendment 11.2 to the suppression hearing distinction between a and a the United States Court has said: dealing We must remember also that we are not with the trial of charge very purpose the criminal suppress itself.... of a motion to escape inculpatory hand, to is thrust of evidence probative not because its of force diluted in the least the mode seizure, compel but rather as a sanction to enforcement officers respect security the constitutional of all of us under the Fourth Amendment. Illinois, McCray 386 U.S. 87 S.Ct. L.Ed.2d 62 *6 the found, although court Common- The lower inquiry. for the that finding, or argue wealth did not request with the suppression July trial commenced on at the delayed request and and was interrupted right waived his defendant Accordingly, defense counsel. .... trial under Rule 1100 speedy at Slip op. for a is defendant finding facially appealing,
This
has
that he
caused. Common
may
delay
benefit from
Gallo,
(1980).
Here there was neither a Indeed, appears evidence of record only record colloquy. hearing, when at of the conclusion occurred: following by any argument?
THE Will there COURT: Yes, MR. WIEDT: sir. record)
(Arguments held off the this get until we THE We will continue COURT: we will wait what to see briefs and the other and things, happens.
Record at 57a. the lower court’s uphold we are unable Accordingly, rights. waived his Rule 1100 finding the lower at this Given point. end might Our discussion one further however, we have examined court’s opinion, of the As noted in our statement we aspect of case. be- delay case, explains the lower court opinion in its and the suppression hearing tween the completion commencement “postponed actual trial by saying of trial at the of defense counsel request upon agree- and ment by Commonwealth and Defendant until a decision was rendered by ...” Slip [in Paulinski] op. believe, 4. This statement, we some com- requires ment, for otherwise decision may our be misunderstood. indicated,
weAs have already the record does not support the court’s statement that its postponement commencement trial was “upon agreement the Com monwealth and Defendant.” We assume that may appel lant, defendant, as the present, therefore heard the court say, “We will continue this until we the briefs and get the other will things, we wait to see what happens.” *7 However, mere silence a defendant when continuance by is granted does not agreement, constitute or waiver. Com Frazier, monwealth v.
(1980); Garrison, 277 Pa.Superior Ct. (1980); Brown, 264 Pa.Supe rior Ct.
Nor is it evident from the record the postpone ment of the commencement of trial “at the request Instead, defense counsel.” the record indicates that postponement bywas mutual agreement. when Specifically, the trial began, said, the lower court in defense rejecting counsel’s Rule 1100 argument:
We heard all the testimony on the Motion to in Suppress case, our and the reason we did not only proceed was because you, Counsel, the Defense Mr. Corbett [for and I agreed all that we would not do Commonwealth] anything at all about this matter until such time as the Supreme Court acted.
Record at 67a. Also, in this regard, noted that may the Commonwealth did not now, argue at and does not argue that defense counsel requested a continuance or was otherwise responsi- ble for the To the delay. replying to defense contrary, counsel’s Rule 1100 argument, argued: in this case any delay delay, argue
We would as court, delay, be viewed Court should was caused by Commonwealth, there- to the charged should not be to run from the continue fore, again should days Motion trial and denied the set this date that Your Honor done. already have you which I believe Suppress, added). R. 65a (emphasis dis- is reversed and of sentence
The judgment charged.
SHERTZ, J., concurring opinion. files a J., SHERTZ, leaving the prior was rendered Decision Pennsylvania. Court of Superior bench of the SHERTZ, concurring: Judge, How- by majority. the result reached I with agree or not Appel- issue of whether ever, rather than reach Rule by mandated lant within the period was tried insufficiency the basis of affirm on Pa.R.Crim.P., I would the evidence. whether, accepting is of evidence sufficiency test of
The. prosecution as presented true all the evidence believed, therefrom, if which all reasonable inferences verdict, it sufficient in law base its could jury properly, *8 that the defendant a reasonable doubt prove beyond of the crime. guilty Smith, 360, 365, 423 A.2d 283 Pa.Super.Ct. 1298 a of lott operating was found guilty
Instantly, Appellant arrest, a indicating At time his slips of numbers ery.1 with $3,000, currency together more than total of play posses in $1,600, Appellant’s were discovered from totalling to convict alone, however, were not sufficient sion. These Lane, stated in Commonwealth this Appellant. As Court (1976): 1271 363 A.2d Pa.Super.Ct. 1. Pursuant (Purdon 1973). § to 18 Pa.Cons.Stat.Ann. In Bondi Pa.Super. [217 was supra, the defendant found be in of possession 398] In of card with 43 bets on it. number of spite large bets, this Court held that without evidence as to whether card, the card was a card or a writer’s player’s defendant’s conviction for could operating not be lottery case, sustained. there present In was no simply evidence as to whether slips possessed by appellant were those of writer or those of a player. Normally the of an officer presents testimony familiar with operations as to whether the lottery possessed slips were writer’s .... the lack such slips testi- mony was fatal in this case.
Id., Pa.Super. (citations omitted). The same evidentiary deficiency present and is similarly fatal the instant case. I Accordingly, concur. A.2d Appointment
In re of a Guardian the Person for
Raymond KATIC, a minor. Appeal Child, by GRIVNA, guardian. Drew his
Superior Pennsylvania.
Argued Oct. 1981.
Filed Jan.