No. 1556 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 136-138,*fn1 May Sessions, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting statement. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 129]
Following a non-jury trial on January 28, 1977, appellant was found guilty of criminal conspiracy,*fn2 robbery*fn3 and aggravated assault.*fn4 Post-trial motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a term of imprisonment of from four to ten years on the robbery charge, and a term of state-supervised probation of five years on the criminal conspiracy charge, probation to run consecutive to the sentence imposed on the robbery charge. The sentencing court found that the assault charge merged into the robbery bill. Appellant now contends that the charges against him should be dismissed because the Commonwealth violated his right to a speedy trial under Pa.R.Crim.P. 1100. For the following reasons, we are constrained to agree with appellant's contention.
On April 2, 1976, a criminal complaint was lodged against appellant charging him with robbery, aggravated assault and criminal conspiracy. Under the precept of Pa.R.Crim.P. 1100(a)(2),*fn5 the Commonwealth had 180 days to bring appellant to trial. On May 21, 1976, appellant petitioned the court below to suppress certain evidence. On November 15, 1976, after 175 days had run for Rule 1100 purposes,*fn6 appellant's motion to suppress was heard by the court below. The court below, per Judge DiBona, granted appellant's motion as to physical evidence, but denied it as to appellant's confession. Immediately after ruling on the motions, Judge DiBona, sua sponte, recused himself from
[ 264 Pa. Super. Page 130]
hearing the case-in-chief, and continued the case to December 15, 1976, even though the run date for bills 136 through 138 was November 22.*fn7
The Commonwealth failed to file a petition to extend during this period,*fn8 i. e. November 15 through December 15, and there was no time, within this period, which is properly excludable under Rule 1100(d).*fn9 Appellant filed an application to dismiss on December 7, 1976, fifteen days after the run date of November 22. This motion was denied by the lower court on December 14, 1976. On December 15, and on all other subsequent listings of the case until the trial on January 28, 1977, appellant waived his Rule 1100 rights.
Based upon the facts of the instant appeal, we are compelled to hold that appellant's right to a speedy trial was violated due to the Commonwealth's failure to bring him to trial within the time mandated by Rule 1100.
[ 264 Pa. Super. Page 131]
The Commonwealth sets forth two grounds upon which it contends that the opinion of the court below should be affirmed. First, the Commonwealth contends that appellant's trial commenced on November 15, 1976, that date on which the court below heard appellant's motion for suppression of evidence. To support this contention, the Commonwealth cites the Comment to Rule 1100,*fn10 and Philadelphia Common Pleas Court Rule 600 IV (Phila.R.C.P.C. 600 IV). The Comment to Rule 1100 provides that "[a] trial commences when the trial judge determines that the parties are present and directs them to proceed to . . . the hearing of motions which have been reserved for the time of trial . . ." Phila.R.C.P.C. 600 IV provides that "[a]ll pretrial suppression applications in non-major [ i. e. non-jury] criminal cases shall be listed for hearing in the same courtroom and on the same date as the non-major case scheduled for trial." The Commonwealth, in essence, contends ...