No. 1810 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1491-1495, 1497, and 1499, November Session, 1974.
Ellen Q. Suria, Bala Cynwyd, for appellant.
James C. Long, Jr., Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion in which Spaeth, J., joins. Van der Voort, J., files a dissenting opinion.
[ 250 Pa. Super. Page 252]
On October 30, 1974, a criminal complaint was filed against the appellant, charging him with robbery, aggravated assault, and other offenses. On September 18, 1975, the appellant was convicted of the charged offenses by a jury. The appellant now claims that he was not afforded a speedy trial under Rule 1100 because he was not brought to trial within 180 days from the date the criminal complaint was lodged against him. See Pa.R.Crim.P. 1100(a)(2).*fn1 The Commonwealth does not contest that it failed to bring the appellant to trial within the mandatory period, asserting instead that the appellant forfeited his right to a speedy trial under Rule 1100 by failing to comply with the requirements of Rule 1100(f). We agree with the Commonwealth's contention.
[ 250 Pa. Super. Page 253]
Rule 1100(f) requires an accused to file a petition before trial showing that the mandatory period has expired.*fn2 In the instant case, the court below, on August 25, 1975, commenced a hearing on the appellant's motion to suppress which had previously been reserved for the time of trial. On August 26, during the suppression hearing, the appellant applied to the court below for an order dismissing the charges against him, claiming a violation of his Rule 1100 right to a speedy trial. The lower court delayed the suppression hearing to enable the appellant to file the required written application to dismiss, see Rule 1100(f), which was denied on September 2, 1975. The question before us is whether the appellant's application to dismiss was timely filed under Rule 1100(f).
The Comment to Rule 1100 advises that: "A trial commences when the trial judge determines that the parties are present and directs them to proceed for voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in trial." (emphasis added) Although the comments to our procedural rules are not binding upon us, they often serve as effective aids in the interpretation of those rules. We find the Comment definition of trial commencement both persuasive and applicable in the instant situation.
By adopting the Comment definition of trial commencement, we seek to establish some degree of uniformity and certainty in Rule 1100 interpretation. The dissent desires us to apply the Comment definition of trial commencement to cases involving subsections (a)(1) and (2) and not to cases involving subsection (f). We believe, however, that to do so would only increase the substantial amount of litigation
[ 250 Pa. Super. Page 254]
and confusion already engendered by Rule 1100. Both parties to this appeal were aware of the provisions of the Rule and its Comment. Section (f) of the Rule unambiguously states that an accused may apply to the lower court for an order dismissing the charges only if such application is made prior to the commencement of trial, but after the expiration of the mandatory period. The time of trial commencement is clearly defined in the Comment to the Rule. We hold therefore that an accused forfeits the protection of Rule 1100 if he fails to assert his rights in the timely fashion required by the Rule. See Commonwealth v. Matt, 248 Pa. Super. 538, 375 A.2d 371 (1977). Since trial had already commenced when the appellant filed his petition to dismiss, the court below correctly denied the appellant's petition as untimely.
Appellant's counsel on appeal, in anticipation of our decision of the above issue, argues further that if appellant's trial counsel failed to file appellant's Rule 1100 motion to dismiss in timely fashion, then appellant's right to effective assistance of ...