Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. WALTER DRAKE (05/30/80)

decided: May 30, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
WALTER DRAKE, APPELLANT



No. 358 January Term 1978, Appeal from the Order of the Superior Court at No. 2246 October Term 1976, affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Section, Trial Division, of Philadelphia at No. 509 December Session 1975

COUNSEL

John W. Packel, Chief, Appeals Div., Defender Assn. of Philadelphia, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Cynthia H. Severinson, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion.

Author: Eagen

[ 489 Pa. Page 543]

OPINION OF THE COURT

Walter Drake, appellant, was convicted of robbery after a non-jury trial in the Court of Common Pleas of Philadelphia. Post-verdict motions were denied, and a judgment of sentence of not less than one nor more than five years imprisonment was imposed. On appeal, the Superior Court affirmed the judgment of sentence. We granted Drake's petition to appeal here.

[ 489 Pa. Page 544]

Drake claims the trial court erred in refusing to grant his pretrial oral application to dismiss the charges pursuant to Pa.R.Crim.P. 1100(f) [Hereinafter: Rule 1100]. The trial court denied the application on the merits. The Superior Court, in a memorandum opinion, indicated it affirmed because the issue was not preserved since Drake failed to file a written application to dismiss, citing Commonwealth v. Yancey, 251 Pa. Super. 478, 380 A.2d 880 (1977). We agree with the Superior Court and, therefore, affirm its order.*fn1

Rule 1100(f) requires a copy of an application to dismiss the charges be served upon the attorney for the Commonwealth. This clearly indicates the Rule mandates a written application. The same purposes of providing the trial courts with specific facts and issues for determination and providing certainty in the record on appeal*fn2 which were advanced by our ruling in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) will be served by enforcement of the written application requirement under Rule 1100(f).*fn3

Drake contends the Commonwealth did not raise the waiver issue in the Superior Court and that court should not have reached or relied upon it. We disagree. An appellate court is not compelled to ignore a rule of procedure merely because the parties fail to place it in issue. Otherwise, our rules of procedure would be no more than advisory guidelines.

[ 489 Pa. Page 545]

Cf. Commonwealth v. Bilhardt, Pa. Super. , 409 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.