No. 1788 October Term, 1975, Appeal from the Judgment of Sentence, dated July 7, 1975, of the Court of Common Pleas of Bucks County, Criminal Division, at No. 2661 of 1974.
Robert A. Naragon, Doylestown, for appellant.
Peter F. Schenck, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Van der Voort, J., dissent.
[ 250 Pa. Super. Page 78]
The appellant contends, inter alia,*fn1 that he was denied his right to a speedy trial under Pa.R.Crim.P. 1100(a)(2).*fn2 We agree, and therefore, reverse the judgment of sentence and discharge the appellant.
The record shows that a criminal complaint was lodged against the appellant on September 25, 1974. The Commonwealth thus had until March 24, 1975, to bring the appellant to trial. After he was indicted and arraigned, the appellant,
[ 250 Pa. Super. Page 79]
on January 23, 1975, filed a motion to suppress evidence. The case was listed for trial on February 5, 1975, and on February 6, 1975, the court below conducted a hearing on the appellant's motion to suppress. After the hearing, the court below deliberated on the matter until March 25, 1975, when it denied the appellant's motion to suppress. On April 21, 1975, the appellant filed a petition to dismiss the charges against him predicated upon a violation of his Rule 1100 right to a speedy trial. The lower court denied this petition, and trial commenced on April 30, 1975.
All periods of delay beyond the prescribed period "'. . . must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.'" Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). The Commonwealth did not file a petition to extend in the instant case. See Pa.R.Crim.P. 1100(c). In denying the appellant's petition to dismiss, the lower court excluded from its computation of the mandatory period the forty-seven days between February 6, 1975, and March 25, 1975. The lower court erred by so doing. Pa.R.Crim.P. 1100(d) provides that periods of delay may be excluded from the computation of the prescribed time only if such periods of delay are caused by: "(1) the unavailability of the defendant or his attorney; (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded." On several occasions, this court has held that time consumed by the lower court in determining pre-trial motions is not excludable under Rule 1100(d). Commonwealth v. Shelton, 239 Pa. Super. 195, 361 A.2d 873 (1976), aff'd, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Millhouse, 239 Pa. Super. 445, 362 A.2d 398 (1976), rev'd on other grounds, 470 Pa. 512, 368 A.2d 1273 (1977).
The Commonwealth, citing the Comment to Rule 1100, also contends that trial commenced on February 6,
[ 250 Pa. Super. Page 801975]
, when the suppression hearing began. The Comment to Rule 1100 provides that: "It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or the hearing of any motions which had been reserved for the time of trial." The record simply does not support the Commonwealth's contention that the hearing on the appellant's suppression motion had been reserved for the time of trial. There is no order so indicating. Moreover, a review of the notes of testimony of the suppression hearing reveals that on February 6, 1975, the assistant District Attorney informed the court below specifically that: "Before the court at this time is a Motion to Suppress certain evidence and statements." There must be some showing on the record that a hearing on a pre-trial ...