No. 1322 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division, at Nos. 895,. 896, 899, 900, 902 April Term, 1975
A. Benjamin Johnson, Jr., 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. Price and Spaeth, JJ., concur in the result. Jacobs, former President Judge, did not participate in the decision or consideration of this case.
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Appellant Richard Woods, and his two co-defendants, were convicted of two counts of rape, robbery, burglary, conspiracy, and carrying a firearm on a public street, at a jury trial in the Court of Common Pleas of Philadelphia County. Post-trial motions were denied and appellant was sentenced to serve a prison term of not less than 15 to not more than 40 years. We affirm the decision of the lower court.
One night in January, 1975, three black males entered the home of Mrs. Delores Calbert and her fourteen year old daughter, Lisa. The men raped both women and robbed the family at gun point. Both Mrs. Calbert and Lisa testified that appellant was one of the three men who participated in these crimes. Appellant's motion to suppress identification testimony was granted as to a pre-arrest photographic show-up, but denied as to all other pre-arrest and subsequent identification evidence. The jury found appellant guilty on all counts.
On appeal, appellant raises eight issues for our review. Although not all of these issues were specifically presented in written post-trial motions, all eight issues were briefed and considered by the lower court. Since the law in effect at the time of this appeal allowed us to consider these issues due to the fact that it was prior to Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), we address the merits of each issue presented.
First appellant argues that the lower court should have granted him a discharge for the failure of the Commonwealth
[ 275 Pa. Super. Page 397]
to bring him to trial within 180 days after the filing of the complaint pursuant to Pa.R.Crim.P. 1100(a)(2).*fn1 Although appellant's argument seems to have merit at first glance,*fn2 the fatal flaw in the argument is that appellant never filed a petition to dismiss pursuant to Rule 1100(f)*fn3 in order to preserve the claim for our review. As our court stated in Commonwealth v. Davis, 261 Pa. Super. 204, 208, 395 A.2d 1388, 1389 (1978):
"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)."
In this case, the Commonwealth filed a Petition to Extend pursuant to Pa.R.Crim.P. 1100(c),*fn4 but withdrew it the next
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day since it felt appellant had unconditionally waived his Rule 1100 rights.*fn5 Therefore, appellant did not have a full opportunity to contest the Commonwealth's petition. However, appellant still should have petitioned for dismissal under Rule 1100(f) and his failure to do so did not give the lower court the opportunity to decide the issue prior to trial. The issue is waived. Commonwealth v. Davis, supra.
Second, appellant argues that the lower court erred by not granting his motion to suppress the in-court identifications made by Delores Calbert and her daughter, Lisa. Appellant contends that there was no origin, independent of a photographic show-up which was suppressed, to support the in-court identification.
At the hearing on the motion to suppress, Mrs. Calbert testified as follows concerning her view of appellant:
"Q. You said it was Mr. Woods. How do you know it was Woods?
A. It was the third one on the end. Bernard Miller and James Miller was with me, so it had to be Woods [who was with Lisa.]
Q. Now, I'm asking you now, did you have an opportunity at the time when he was in the hallway to see his face?
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A. I seen him go into the room and I see him hand Bernard Miller the gun. He had a gun and ...