No. 265 January Term, 1979, Appeal from the March 9, 1979 Order of the Superior Court, at October Term, 1977, No. 1556, Reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of May Sessions, 1976, Nos. 136 through 138, and Discharging Defendant
Eric Henson, Deputy Dist. Atty., Nancy D. Wasser, Asst. Dist. Atty., for appellant.
John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., and Wilkinson, J., concurred in the result. Roberts, J., dissents and would affirm the order of Superior Court.
On January 28, 1977, appellee, Bradley Brown, was convicted in a non-jury trial of robbery, aggravated assault and criminal conspiracy. These convictions arose out of appellee's participation in the beating and robbery of one Lamar Brown which ended with the victim, Lamar Brown, being run over and killed by a bus after his attackers left him lying unconscious in the street. Post-verdict motions were denied and appellee received consecutive sentences of four to ten years imprisonment for robbery and five years probation for criminal conspiracy.*fn1 On appeal, the Superior Court held that appellee's rights under Rule 1100, Pa.R.Crim.P. had been violated, reversed the judgments of sentence and discharged appellee. Commonwealth v. Brown, 264 Pa. Super.Ct. 127, 399 A.2d 699 (1979). We granted the Commonwealth's petition for allowance of appeal and we now reverse.
The procedural history of this case is as follows. After evading police for over one year, appellee was arrested and a complaint was filed against him on April 3, 1976. The last day for trial under Rule 1100 was 180 days thereafter, on September 30, 1976.*fn2 On September 24, 1976, with just six days left to run under Rule 1100, appellee obtained a continuance and waived Rule 1100 until November 15, 1976.*fn3 The period of September 24, 1976 through November 15, 1976
was thus excluded from the running of the 180 days under Rule 1100.*fn4 At the conclusion of this period on November 15, 1976, the rule again began to run for the six days remaining under Rule 1100, thus advancing the last day for trial to November 22, 1976.*fn5
On November 15, 1976, the trial court heard appellee's motion to suppress. After granting the motion in part and denying it in part, the trial judge made the following pronouncement in open court which ended the hearing:
I am not even going to ask you if you are going to go to trial at this time because I do believe I have resolved an issue in favor of the Commonwealth and against the defendant, which may have an effect on me if I heard the trial in chief. Accordingly ...