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