No. 39 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County Pennsylvania.
William B. Eagan, Willow Grove, for appellant.
Joseph A. Smyth, Dist. Atty., Ronald T. Williamson, Chief, Appeals Div., David M. McGlaughlin, Asst. Dist. Attys., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., filed a dissenting opinion in which Roberts, J., joins.
This is an appeal from an order imposing judgment of sentence entered in the Court of Common Pleas of Montgomery County on January 12, 1979.*fn1 Appellant, Thomas Carl Jones (a/k/a Thomas Carl Friday), was convicted by a jury of first degree murder and theft of movable property. These charges arose out of the brutal slaying of appellant's aunt, Mrs. Eleanor Friday, of Norristown. Appellant's principal complaint is that he was denied his right to a speedy trial as guaranteed by Pa.R.Crim.P. 1100 and by the speedy trial provisions of the United States and Pennsylvania Constitutions.*fn2 We disagree and affirm the judgment of sentence.
The relevant history of the case is as follows: Criminal Complaints were filed in Montgomery County on April 4 and 5, 1975, charging appellant with criminal homicide and various lesser offenses. On April 6, 1975, appellant was arrested in the State of Missouri by an officer of the Missouri State Police, and was returned to Montgomery County and charged with murder. Preliminary hearing was held on
June 12, 1975, and appellant was indicted by the Grand Jury of Montgomery County on August 11, 1975.
A pre-trial Motion to Suppress Statements and Evidence was heard by the trial court, and on November 6, 1975, the motion was granted in part and denied in part. Certain statements made to and certain evidence seized by the arresting officer in Missouri, including the murder weapon, were ordered suppressed. On November 13, 1975, the ruling of the suppression court was appealed by the Commonwealth to this Court. By an Order and Opinion filed October 7, 1977, we affirmed. Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977). On January 4, 1978, the Commonwealth filed a Petition for Writ of Certiorari in the United States Supreme Court, and the Petition was denied on March 27, 1978. 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546.
On April 27, 1978, appellant filed a Motion to Dismiss under Pa.R.Crim.P. 1100, which was denied on May 2, 1978, and trial immediately commenced. On May 9, 1978, the jury returned its verdict. Post verdict motions were filed, argued and denied, and on January 12, 1979, appellant was sentenced to a term of imprisonment for life.
Appellant here contends that his right to a speedy trial guaranteed by Rule 1100 of the Pennsylvania Rules of Criminal Procedure*fn3 and by the federal and state constitutions was violated by the delay caused by the Commonwealth's
appeals of defendant's successful suppression motion.*fn4
Appellant contends that after taking into account properly granted continuances and extensions of time obtained by both the prosecution and the defense, Rule 1100 required that his trial commence no later than December 1, 1975.*fn5 He argues: (1) that trial did not begin until after completion of the Commonwealth's unsuccessful appeals of the suppression order, (2) that the Commonwealth failed to petition the court for an extension of time for trial during the pendency of those appeals, and therefore (3) that Rule 1100 was violated.
The Commonwealth argues: (1) that all time after November 5, 1975, the date of the suppression hearing, is excludable from the Rule 1100 period because the trial had officially commenced on that date, and (2) that its appeals from appellant's suppression motion divested the trial court of jurisdiction to proceed, thus rendering a petition for extension of time unnecessary.
In determining when a trial "commences" for Rule 1100 purposes, this Court has been guided by the comment drafted by the Criminal Procedural Rules Committee:
It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial.
Pa.R.Crim.P., Rule 1100 comment. (Emphasis supplied). In an often cited concurring opinion in Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977), former Chief Justice Eagen discussed the meaning of this comment:
The words 'some other such' immediately preceding 'first step in the trial' clearly indicate that the events specifically referred to in the comment are to be considered first steps in a trial for the purposes of Rule 1100, see Commonwealth v. Boyle  Pa.  353, 368 A.2d 661, 666 (1977), even though not all of these events are, strictly speaking, directly involved with the determination of guilt or innocence. For example, if a case were called to trial and after determining the parties were present, the trial Judge held a hearing on a Suppression Motion which had been reserved for the time of trial, presumably the trial would have commenced for purposes of Rule 1100. This leads to the conclusion that the principle concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than a pro forma, event. Moreover, each of the events specifically referred to in the foregoing portions of the comment represents a degree of commitment of the Court's time and resources ...