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COMMONWEALTH PENNSYLVANIA v. BENJAMIN FRANKLIN DAVIS (12/21/78)

decided: December 21, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
BENJAMIN FRANKLIN DAVIS, APPELLANT



No. 196 March Term 1977, Appeal, in Forma Pauperis, from the Judgment of Sentence in the Court of Common Pleas, Criminal Division of the County of York, Pa.

COUNSEL

H. Stanley Rebert, Assistant Public Defender, York, for appellant.

Daniel M. Frey and Floyd P. Jones, Assistant District Attorneys, York, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., dissents. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 261 Pa. Super. Page 207]

This is an appeal from a judgment of sentence entered upon conviction of robbery. The principal question is whether the lower court erred in denying appellant's motion for discharge under Pa.R.Crim.P. 1100. We find the record insufficient to dispose of this question, and so remand.

On May 1, 1975, the York City Police filed a complaint against appellant, charging him with robbery. Appellant could not be found, and on June 4 the case was returned for court by the magistrate without a preliminary hearing. On July 21, 1975, an indictment was presented by leave of court. On August 12, 1975, appellant was extradited from Newburgh, New York.

From September 8 to September 16, 1975, appellant was on trial for homicide. Upon conviction, he requested immediate trial on the robbery charge. The lower court denied the request, finding that such a trial would have been before the same jury panel, with prejudice to appellant arguably resulting, and that no prejudice would result from awaiting a new jury panel. Trial was set for January 27, 1976.

At some time before that date, appellant filed a motion for discharge pursuant to Rule 1100(f). On January 27 the lower court continued the trial date because of this motion, and because appellant had requested a preliminary hearing. Argument on the Rule 1100 motion was set for February 5, but the lower court specified that the period to be discussed would be May 1, 1975, to January 27, 1976. On February 5 the Rule 1100 motion was denied. On February 26 the case

[ 261 Pa. Super. Page 208]

    was remanded to a magistrate for a preliminary hearing, which was held on March 12. On April 27 a suppression hearing and non-jury trial took place, and appellant was convicted. Post trial motions were denied, and this appeal followed.

The parties and the lower court's opinion on appeal discuss the Rule 1100 question in terms of the entire period of time up to trial on April 27. However, as has been mentioned, in denying the Rule 1100 motion the lower court limited its ruling of February 5 to the period up to January 27. Appellant never filed another motion, to have the court consider possible Rule 1100 violations occurring after January 27. At the suppression hearing, he moved orally*fn1 to dismiss pursuant to Rule 1100. In response the lower court noted that the Rule 1100 issue had previously been before it, and asked counsel if there were any other facts he wished to present on that subject, "which were not previously considered by the court," N.T. suppression hearing at 1. Counsel replied that there were none, and the suppression hearing commenced.

To establish a Rule 1100 claim, the defendant is obliged to have the lower court rule on its merits prior to trial. Thus he must either file a motion under Rule 1100(f) or contest the Commonwealth's petition to extend, so that by one method or the other the facts and issues come before the court. Otherwise, his Rule 1100 claim will be waived. See Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978); Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977). Where the defendant obtains a lower court ruling that considers only a given period, but seeks appellate review on the basis of an argument that considers a later time period, as to which ...


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