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COMMONWEALTH PENNSYLVANIA v. FRANK WAREHAM (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK WAREHAM, APPELLANT



No. 346 October Term, 1977, Appeal from the Judgment of Sentence of Tredinnick, J., dated October 20, 1976, in the Court of Common Pleas of Montgomery County, Criminal Division, at No. 5657 and 5659 October Term, 1975.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a concurring opinion in which Spaeth, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 256 Pa. Super. Page 27]

Appellant Frank Wareham was found guilty on two counts of two indictments alleging violations of the Controlled Substance, Drug, Device and Cosmetic Act. The Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended by Act of Oct. 26, 1972, P.L. 1048, No. 263, § 1, and Act of Dec. 30, 1974, P.L. 1041, No. 340, § 1, 35 P.S. § 780-113(a)(30). He brings this appeal alleging errors pursuant to Pa.R.Crim.P. 1100 on each indictment. Because of an inadequate record, we are precluded from reaching the merits of the issues raised on either indictment number 5657 or 5659. Accordingly, we vacate the judgment of sentence on both counts and remand the case for proceedings consistent with this opinion.

As the lower court, per TREDINNICK, J., stated, "Procedurally, the Rule 1100 issue as finally adjudicated in each case, came before the court in an unusual fashion." Lower court opinion at 3. On October 2, 1975, two written complaints were filed against appellant charging him with violations of the Controlled Substance Act. Barring any extensions or exclusions, the Commonwealth was required to bring appellant to trial no later than March 30, 1976. Pa.R.Crim.P. 1100(a)(2).*fn1 On March 16, 1976, the Commonwealth

[ 256 Pa. Super. Page 28]

    filed a petition requesting an extension of time for commencement of trial on both counts. On March 26, 1976, the court, per LOWE, J., entered an order extending the period for commencing trial on number 5659 until June 25, 1976. On April 6, 1976, the court, per TREDINNICK, J., entered an order denying an extension on number 5657 ; it is unclear whether the court also ordered the appellant discharged on this count. Subsequently, appellant filed a motion to vacate the Commonwealth's petition to extend time in number 5659 and the Commonwealth filed a motion to reopen the hearing on its petition to extend in number 5657. After a hearing, Judge TREDINNICK, on May 28, 1976, granted the Commonwealth's request for extension on both numbers 5657 and 5659.*fn2

First, we consider appellant's appeal concerning indictment number 5657. Appellant asserts in his brief that on April 6, 1976, Judge TREDINNICK denied the Commonwealth's petition to extend and dismissed the charges against him with prejudice. In its brief, the Commonwealth states that the Judge denied the petition to extend, but does not mention discharge of the appellant. In his May 28, 1976 order, Judge TREDINNICK referred to his decision of April 6, in which he "den[ied] the petition of the Commonwealth to extend time under Rule 1100, and dismiss[ed] the charges against defendant, . . . ." In a written opinion filed on November 19, 1976, however, Judge TREDINNICK stated that on April 6, 1976, he denied the Commonwealth's petition to extend; he did not speak to the issue of discharge.

Generally, we would be able to resolve this morass by referring to the record. Here, however, the record is so incomplete that it is of no help. The Commonwealth's petition requesting an extension on indictment number 5657 is not a part of the record. Also missing is any response to the petition by appellant; we do not know if appellant

[ 256 Pa. Super. Page 29]

    responded or, if he did, whether he filed a petition in opposition to the Commonwealth's petition or a Rule 1100(f) petition requesting discharge. Finally, there is no record of the court's April 6 order so we do not know if the court merely denied the Commonwealth's petition to extend or also discharged the appellant. Therefore, we ...


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