No. 970 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC 7801556A.
Karl W. Wiedt, III, Pittsburgh, for appellant.
Kamali Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Shertz and Montgomery, JJ. Shertz, J., files a concurring opinion. Decision was rendered prior to Shertz, J., leaving the bench of the Superior Court of Pennsylvania.
[ 294 Pa. Super. Page 340]
This is an appeal from a judgment of sentence for operating a lottery. Appellant argues that he was not tried within the period required by Pa.R.Crim.P. 1100.*fn1 We have concluded that he was not, and therefore order him discharged.
The complaint was filed on February 28, 1978. A timely motion to suppress was filed, and was scheduled to be heard "on the date of trial, immediately prior to trial." Order of Court dated June 1, 1978 (not included in reproduced record). Trial was scheduled for July 17, 1978, and on that date the lower court heard the motion to suppress. The central issue concerned the constitutionality of the Pittsburgh Police Magistrate's Court, a question then pending before the Supreme Court. The lower court states that it "postponed the commencement of trial at the request of defense counsel and upon agreement by the Commonwealth and Defendant until a decision was rendered by the Supreme Court . . . ." Slip op. at 4. The run date for the 180-day period was August 27, 1978. About six months later, on January 24, 1979, the Supreme Court upheld the constitutionality of the Magistrate's Court. Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760, cert. denied, 442 U.S. 918, 99 S.Ct. 2841, 61 L.Ed.2d 286 (1979). A month later, on February 28, 1978, which was 365 days after the complaint had been filed, appellant was tried by a judge sitting without a jury -- the same judge as the judge who heard the motion to suppress -- and was convicted. At no point did the Commonwealth petition for an extension of time.
[ 294 Pa. Super. Page 341]
The Commonwealth argues that for Rule 1100 purposes, appellant's trial commenced at the beginning of the suppression hearing on July 17, 1978, something over a month before the run date.
Rule 1100 does not speak directly to this argument, providing only that "[f]or the purposes of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial." However, our interpretation of this provision is aided by the Comment, which we adopted in Commonwealth v. Byrd, 250 Pa. Superior Ct. 250, 378 A.2d 921 (1977), rem'd on other grounds, 493 Pa. 178, 425 A.2d 722 (1981). Accord, Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681, cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78 (1979); Commonwealth v. Brown, 264 Pa. Superior Ct. 127, 399 A.2d 699 (1979); Commonwealth v. Taylor, 254 Pa. Superior Ct. 211, 385 A.2d 984 (1978); Commonwealth v. Jackson, 262 Pa. Superior Ct. 151, 396 A.2d 690 (1978). The Comment provides in pertinent part:
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.
In discussing this definition of "commencement of a trial," Chief Justice EAGAN in Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (concurring opinion), concluded that the language "first step in the trial" means "the beginning of any stage which leads directly into the guilt-determining process." This conclusion became part of the test formulated by us in Commonwealth v. Dozier, 258 Pa. Superior Ct. 367, 392 A.2d 837 (1978), where we said:
Thus, a hearing on a motion will mark the commencement of a trial under Rule 1100 only if (1) the accused is adequately warned that the hearing has been reserved until the time of trial and (2) the hearing ...