No. 188 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment Nos. 42-43, October Session, 1975.
Leonard Sosnov, John W. Packel, Assistant Public Defenders, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 357]
Appellant contends that the lower court erred when it: (1) did not dismiss the criminal charges against him, based upon a violation of Pa.R.Crim.P. 1100; (2) did not arrest judgment on the charge of possession of a screwdriver as an instrument of crime, due to insufficient evidence, and (3) convicted and sentenced him for two inchoate crimes, in violation of 18 Pa.C.S.A. § 906. Because we agree that the lower court illegally sentenced appellant, we vacate the judgments of sentence and remand for resentencing.
On September 9, 1975, Philadelphia police arrested appellant and filed a written complaint charging him with attempted theft of an automobile*fn1 and possession of a screwdriver as an instrument of crime.*fn2 Under Pa.R.Crim.P. 1100(a)(2),*fn3 the Commonwealth had to commence trial by March 8, 1976. In fact, trial did not commence until June 10, 1976, 274 days after the written complaint was filed. On
[ 261 Pa. Super. Page 358]
April 27, 1976, a calendar judge sua sponte determined that appellant was unavailable during a 99 day period from November 10, 1975, when the court issued a bench warrant against appellant, to February 17, 1976, when the court withdrew the bench warrant; accordingly, the judge set June 15, 1976 as the date by which the Commonwealth had to commence appellant's trial. Appellant's attorney orally raised the "possibility" that appellant was not served with a notice to appear in court on November 10, 1975, the day the court issued the bench warrant. Neither appellant's attorney nor the Commonwealth presented any testimony or documentary evidence on this issue. At no time before trial commenced on June 10, 1976, did the Commonwealth file a petition for extension of time pursuant to Rule 1100(c), or appellant file a written petition to dismiss charges pursuant to Pa.R.Crim.P. 1100(f).*fn4
Testimony at appellant's non-jury trial on June 10, 1976, revealed the following facts. On September 9, 1975 at 9:45 p. m., when Mr. Jackie Watson left his 1968 Cadillac automobile parked directly in front of his home, the car doors were locked, the car windows were rolled up, the glove compartment door was closed, no wires hung down from the dashboard, and no roll of tape, screwdriver, or other tool was in the car. Shortly before midnight, Watson observed appellant inside his car and called the police. When two police officers arrived on the scene minutes later in response to Watson's call, they observed appellant lying down in the front of the car. They also observed that the glove compartment door was bent open, ignition wires were hanging down from the dashboard, and a screwdriver and a roll of tape were on the car floor near appellant. Appellant denied that he was ever in the car.
[ 261 Pa. Super. Page 359]
On June 10, 1976, the lower court found appellant guilty of attempted theft of the Cadillac and possession of the screwdriver as an instrument of crime. On July 15, 1976, the court denied appellant's post-verdict motions,*fn5 and, on September 9, 1976, sentenced appellant to one and one-half to seven years imprisonment for attempted theft and, consecutive to that prison sentence, five years probation for possession of the screwdriver as an instrument of crime. This appeal followed.
Appellant first contends that we should discharge him because the Commonwealth violated Rule 1100. Initially, we do not believe that merely raising a "possibility" of an irregularity in the issuance of a bench warrant, without more, constitutes a motion to dismiss. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). More importantly, even assuming arguendo that the statement by appellant's counsel on April 27, 1976 was an oral motion to dismiss, we hold that appellant has waived this issue because he never filed a written application for dismissal under ...