No. 492 January Term, 1978, Appeal from the Order of the Superior Court, October Term, 1976, No. 1810, Reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of Nos. 1491-95, 1497 and 1499, November Sessions 1974, and Discharging Defendant.
Steven H. Goldblatt, Deputy Dist. Atty., Maxine J. Stotland, Asst. Dist. Atty., Philadelphia, for appellant.
Paul G. Hughes, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This is an appeal by the Commonwealth seeking review of an order entered by the Superior Court reversing the judgments of sentence and discharging the appellee. A review of the procedural history is critical to the resolution of the questions involved. The charges herein involved stem from a robbery which occurred in the City of Philadelphia on October 29, 1974. During the course of an omnibus suppression hearing that had been reserved for the time of trial, appellee first raised a Rule 1100 violation and sought his release. The suppression hearing proceedings were interrupted by the assigned trial judge and the cause was referred back to the calendar judge for disposition of the Rule 1100 claim. The Rule 1100 claim was heard, denied and the matter was sent back to the assigned trial judge who completed the suppression proceedings and presided over the trial before a jury. The appellee was convicted on the charges and post-verdict motions were filed.
The single complaint raised in the post-verdict motions was the alleged Rule 1100 violation. Both parties submitted their respective version of the chronology of the events relating to the claimed violation.*fn1 It is to be noted that these documents contain significant areas of factual dispute, the resolution of which would be critical to a determination of the merits of the Rule 1100 question. The court dismissed the post-verdict motion, finding that the claim had been
waived because of appellee's failure to raise the issue prior to trial pursuant to paragraph (f).*fn2 The appellee's appeal to the Superior Court resulted in a reversal of the judgment of sentence and an order directing his discharge. Commonwealth v. Byrd, 250 Pa. Super. 250, 378 A.2d 921 (1977).
The majority of the Superior Court properly defined and correctly resolved the initial question presented. That question was whether there was a waiver in this case under paragraph (f) of the Rule, as found by the trial court. In this regard, the majority of the Superior Court held that the petition to dismiss in this case was filed after the commencement of trial and that the trial court was correct in denying the motion as being untimely, pursuant to paragraph (f).*fn3 This portion of the Superior Court's ruling is not here being challenged by either side.*fn4 What is being questioned by the Commonwealth, is the Superior Court's further determination that the merits of the claim was properly before the court and that the record provided a sufficient basis to sustain the determination that appellee should be discharged.
The Commonwealth contends that it was denied its right for a hearing under paragraph (f) -- "A copy of such application shall be served ...