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COMMONWEALTH PENNSYLVANIA v. MICHAEL A. WHARTON (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL A. WHARTON, APPELLANT



No. 520 October Term, 1976, Appeal from the Judgment of Sentence of Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of June Sessions, 1974, Nos. 1679, 1681, 1682 and 1683.

COUNSEL

Michael J. Stack, Jr., Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Cercone

[ 250 Pa. Super. Page 27]

This is appellant's appeal from judgment of sentence fixing the term of imprisonment of not less than four nor more than twelve years in a state correctional institution for the crimes of robbery, burglary, criminal conspiracy, and possession of instruments of crime.

Initially, appellant contends that the lower court erred in not granting appellant's motion for dismissal under Pa.R.Crim.P. 1100(f) and in granting the Commonwealth's application for extension pursuant to Pa.R.Crim.P. 1100(c). The facts necessary for the resolution of the Rule 1100 issue are as follows: A written complaint was filed against appellant, Michael A. Wharton, on May 24, 1974. According to the time limits for trial set forth in Pa.R.Crim.P. 1100(a)(1) appellant's trial should have commenced "no later than two hundred seventy days from the date on which the complaint is filed," that is on or before February 18, 1975. On the final day of the two hundred seventy day period, the case was assigned to trial before the Honorable John R. Meade. Judge Meade, however, was then and there engaged in the trial of another case. Realizing that it was highly unlikely that appellant's trial would commence within the prescribed period, the Commonwealth presented a written application for an order extending the time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c). Acting upon this application, the lower court set the following day, February 19th, as the hearing date for the Commonwealth's petition. The petition, however, was not docketed by the clerk of court's office until the morning of February 19th. Prior to the hearing, appellant applied to the lower court for an order dismissing the charges against him because of the violation

[ 250 Pa. Super. Page 28]

    of Rule 1100. On the same day, February 19, 1975, after the hearing, Judge Bonavitacola granted the Commonwealth's petition for extension and denied appellant's motion to dismiss. In granting the Commonwealth's petition, the court entered an order extending the time for commencement of trial to February 21, 1975.

A hearing on appellant's motion to suppress, which had been reserved for the time of trial, began on Friday, February 21, 1975. That hearing was completed on Monday, February 24, 1975, and the lower court ruled on the motion to suppress on that date. On February 25, jury selection began. The jury selection was completed and actual trial began on February 26, 1975. Pa.R.Crim.P. 1100(b) provides that, "[f]or the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial." [Emphasis added.] The comment to Rule 1100 provides, in pertinent part, that:

"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 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 the trial."

Although the comments to the Rules of Criminal Procedure are not part of the Rules and have not been officially adopted by our Supreme Court, they nevertheless have been used in resolving questions of interpretation under the Rules. See, Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977). Returning to the facts of the case at bar, we find that appellant's motion to suppress was reserved for the time of trial and actual trial promptly followed the suppression hearing. Therefore, for the purposes of Rule 1100, as interpreted in Commonwealth v. Lamonna, supra, trial commenced on February 21, within the period of extension granted by Judge Bonavitacola, but beyond the 270-day period mandated by ...


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