No. 875 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bill of Indictment No. 1317, October Session, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, concurs in the result. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 267 Pa. Super. Page 207]
Appellant Drake Hall, a/k/a James Carter was convicted by a jury in the Court of Common Pleas of Philadelphia County of one count of robbery. Following denial of post-trial motions, he was sentenced to a maximum term of ten to twenty years imprisonment. This direct appeal followed.
Testimony at trial established the following. On March 5, 1976, the victim, 43 year-old Phillip Skipworth, was in his home he shared with his brother on Farragut Street in Philadelphia. Sometime during the afternoon, appellant and an unidentified individual came to the door and asked for Phillip's brother Wilbur. Although Wilbur was not at home
[ 267 Pa. Super. Page 208]
at that time, Phillip admitted the two men into the house and accompanied them upstairs. At this point, appellant's companion bound Phillip's hands, threatened him with an iron bar, and forced him to lie on a bed. Appellant and his confederate then removed clothes, TV set, and "a few more things" from the house and quickly fled. Phillip was soon able to free himself and summon aid. Appellant was known to Phillip as an occasional companion of Wilbur Skipworth and thus Phillip could readily supply investigating officers with appellant's name and description. An arrest warrant issued the next day, but was not served on appellant until nearly five months later.
Appellant testified that he was indeed at the Skipworth residence on March 5, 1976 in the company of Phillip and one James Allan. Appellant left the premises without Allan and discovered later that Allan had threatened Phillip and taken several items from the house. Appellant admitted to eluding the authorities for five months because he was aware the police were looking for him, but he denied any participation in the robbery.
Appellant first contends he is entitled to a dismissal of all charges because the Commonwealth did not bring him to trial within the time required by Pa.R.Crim.P. 1100. At a pre-trial suppression hearing, counsel raised the prompt trial issue orally, suggesting the 180 day time limit had long since expired and that appellant should be discharged. This motion was denied. We think the Rule 1100 claim has not been properly preserved since it was presented orally and not in writing as Rule 306 clearly requires: "All pretrial motions for relief shall be in writing . . ." Moreover, Rule 1100 itself implies that an application to dismiss must be written: "A copy of such application shall be served upon the attorney for the Commonwealth . . ." Rule 1100(f), (emphasis added). The reason for requiring written pretrial motions is well settled. A writing crystalizes the specific grounds relied upon for relief and ensures that the Commonwealth, trial, and appellate courts will know the precise contentions raised, allowing a focused response and
[ 267 Pa. Super. Page 209]
decision. Commonwealth v. Kinsey, 249 Pa. Super. 1, 375 A.2d 727 (1977). In the instant case, the Rule 1100 issue was raised by the defense counsel as an afterthought following a lengthy pretrial hearing on other matters. The brief, cursory discussion which ensued between the court and counsel illustrates by contrast the need for a prior, written motion, allowing both sides to carefully prepare their positions and to present concrete, well-reasoned arguments to the court. We cannot accept such cavalier treatment of important issues below, in derogation of the Rules, and thus hold appellant has waived his Rule 1100 claim by failing to file a written application to dismiss. See, Commonwealth v. Webb, 254 Pa. Super. 429, 386 A.2d 25 (1978) (Opinion in Support of Affirmance).
Appellant next challenges the competency of the Commonwealth's chief witness, Phillip Skipworth. Phillip, age 43 at time of trial and an epileptic, experienced some difficulty at the preliminary hearing understanding questions posed to him and recalling certain facts germane to the incident. At a pretrial hearing, the court determined Phillip competent to testify.
Initially we note the competency of a witness is a matter for the trial court to determine and is not reviewable in the absence of a clear abuse of discretion. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Commonwealth v. Allabaugh, 162 Pa. Super. 490, 58 A.2d 184 (1948). The relevant inquiry is whether the witness: 1) has the capacity to observe or perceive the occurrence with a substantial degree of accuracy; 2) has the ability to remember the event which was observed or perceived; 3) has the ability to understand questions and to communicate intelligent answers about the occurrence, and; 4) has a consciousness of the duty to speak the truth. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978); Commonwealth v. Mazzoccoli, 475 Pa. 408, 380 A.2d 786 (1977); Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); cf. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). Appellant instantly centers his attack on the fourth criterion,
[ 267 Pa. Super. Page 210]
which we have also described as "the moral responsibility to be truthful". Commonwealth v. Mangello, 250 Pa. Super. 202, 203, 378 A.2d 897, 898 (1977).
The following colloquy between Phillip and the trial court amply demonstrates Phillip was well aware of his obligations under oath:
Q. Do you know what you just did a while ago when the man came over and you put your hand on that book? Do you know what you did?
Q. Tell me, what did you do?
Q. Right. Go ahead. That you would do what?
Q. You're telling me the truth now, aren't you?
Q. Were you involved in an incident back on March 5, 1976? Why ...