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decided: April 13, 1978.


No. 573 April Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, at Nos. 392, 393 April Term, 1975.


Alfred B. Bell, Greensburg, with him Dante G. Bertani, Greensburg, for appellant.

Albert M. Nichols, District Attorney, Greensburg, submitted a brief for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Van der Voort, J., files an opinion in support of affirmance in which Jacobs, President Judge and Price, J., join. Hoffman, J., files an opinion in support of reversal in which Cercone and Spaeth, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 254 Pa. Super. Page 432]

The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.


VAN der VOORT, Judge:

Complaints were filed against appellant Charles Webb on December 17, 1974, charging him with two counts of possessing illegal drugs with intent to deliver. Appellant was not arrested until ten days later, December 27, 1974. Since the 180th day from the filing of the complaints was a Sunday, under Pa.Rule of Criminal Procedure 1100 appellant should have been brought to trial, if there were no extensions or continuances, by Monday, June 16, 1975. Trial was scheduled for Wednesday, June 18, 1975, the 183rd day following the filing of the complaints. On the day set for trial, appellant, through his attorney, requested a continuance. Appellant was advised that he had a right to trial within 180 days and that a continuance would put his case beyond the required period. (The 180 day period had already expired, of course, if there were no automatic extensions). Appellant agreed on the record to waive the 180 day rule and his right to a speedy trial, and the case was continued to September 16, 1975. On that date, the case was called for trial, the parties were sworn, and appellant's new counsel presented an oral application to dismiss the indictment for failure of the Commonwealth to bring appellant to trial within 180 days. The assistant district attorney objected to the fact that the matter of dismissal had not previously been

[ 254 Pa. Super. Page 433]

    presented to the court, and claimed that appellant had been a "fugitive" between the date the complaints were filed and the date appellant was arrested. Without hearing argument on whether or not appellant was a fugitive, the lower court denied the oral application to suppress, and the trial commenced. A written application to quash the indictments was not filed until September 18, 1975, the date appellant was found guilty. Appeal was taken to our court from the judgment of sentence.

Appellant argues that the lower court erred in refusing to grant his application to quash the indictments for failure of the Commonwealth to try him within 180 days. Pennsylvania Rule of Criminal Procedure 306 states: "All pretrial motions for relief shall be in writing." Three members of our Court, by over-extending Commonwealth v. Keefer, 470 Pa. 142, 367 A.2d 1082 (1976) would make this rule meaningless. In Keefer, a juvenile who objected to transfer of his robbery and conspiracy charges from juvenile to criminal division, raised his objection at four stages: at the transfer hearing, at the preliminary hearing, orally at the commencement of trial, and in post-trial motions. The Supreme Court found under those circumstances that the appellant's failure to file a written pre-trial motion did not constitute a waiver of the issue. The situation in the case before us is totally different; appellant Charles Webb did not bring the Rule 1100 issue to the attention of the lower court until the case was called to trial, and then raised it only orally. I believe that our court should apply the rules of criminal procedure evenhandedly. If the Commonwealth is to be held strictly to a period of 180 days for bringing cases to trial, then defendants in criminal cases should be required to comply with the rules with respect to time and manner of filing applications for dismissal. I would find that appellant waived his right to a trial within 180 days by his failure to file a timely written application to dismiss.*fn1

[ 254 Pa. Super. Page 434]

Appellant argues that the failure of his first trial attorney to advise him that 180 days had already elapsed constituted ineffective assistance of counsel. Since appellant was advised on the record of his right to trial within 180 days and could have counted the days himself, I would find this back-door approach to the preceding argument also non-meritorious.

Appellant argues that the lower court erred in refusing to grant his demurrer at the close of the prosecution's case, since the prosecution did not introduce any evidence to show that appellant was not registered to possess controlled substances. In Commonwealth v. Stawinsky, 234 Pa. Super. 308, 339 A.2d 91 (1975), allocatur refused, our court held that there was no burden on the Commonwealth to prove the absence of such registration. The case before us does not require a reversal of our court's position in Stawinsky.

Appellant's final argument is that the trial court erred in refusing to read to the jury the following requested point for charge: "If you believe that the accused acted only as a conduit in the transactions by which Miss Readinger [the police undercover agent] procured the marijuana, and that the accused did not profit because of the role he played, then you must acquit the accused of the crimes charged." Appellant cites Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972) as support for his position. Simione involved a defendant who was charged with the sale of a controlled substance; in fact, the Commonwealth's Bill of Particulars specified "sale". The Supreme Court held that when the Commonwealth specified that it would prove that a sale had taken place, the Commonwealth would have to prove that an actual sale had taken place, and the trial court would have to charge the jury that a defendant could be an agent or conduit without being a seller. The case before us involves a charge of possession with intent to deliver; the lower

[ 254 Pa. Super. Page 435]

    court did not err in refusing to read to the jury a point for charge that related to selling controlled substances.

The judgment of sentence is ...

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