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filed: January 14, 1982.


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.

Author: Spaeth

[ 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 actually leads directly into the guilt-determining process.

[ 294 Pa. Super. Page 342]

    hearing and the trial was 185 days, not so long as the periods considered in Brown and Haddad, but a little longer than the period in Taylor and a great deal longer than the periods in Griffin and Bethel. We therefore conclude that the second part of the Dozier test was not satisfied.

The correctness of this conclusion is confirmed by a review of cases in which we have held that the Dozier test was satisfied. In each such case the actual trial was so soon after the suppression hearing that the two could be viewed as a unified whole.*fn3 Commonwealth v. Whitner, 278 Pa. Superior Ct. 175, 420 A.2d 486 (1980) (jury selection immediately after suppression hearing); Commonwealth v. Kluska, supra (trial began day after completion of suppression hearing); Commonwealth v. Wharton, 250 Pa. Superior Ct. 25, 378 A.2d 434 (1977) (jury selection began day after completion of suppression hearing); Commonwealth v. Fisher, 244 Pa. Superior Ct. 361, 368 A.2d 762 (1976) (trial began two days after completion of suppression hearing).

Our conclusion that appellant's trial did not commence with the suppression hearing does not, however, end our

[ 294 Pa. Super. Page 344]

    inquiry. The lower court found, although the Commonwealth did not request or argue for the finding, that

     trial commenced on July 17, 1978 with the suppression hearing and was interrupted and delayed at the request of defense counsel. Accordingly, defendant waived his right to a speedy trial under Rule 1100 . . . .

Slip op. at 4.

This finding is facially appealing, for a defendant may not benefit from a delay that he has caused. Commonwealth v. Gallo, 276 Pa. Superior Ct. 562, 419 A.2d 601 (1980). However, Rule 1100 protects a fundamental right personal to the accused. Commonwealth v. Guldin, 278 Pa. Superior Ct. 69, 419 A.2d 1360 (1980). Therefore, either a signed statement or an on-the-record colloquy is necessary before waiver by the accused may be found. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1980). See also, Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980); Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978). Here there was neither a signed statement nor an on-the-record colloquy. Indeed, the only evidence of record appears at the conclusion of the suppression hearing, when the following occurred:

THE COURT: Will there by any argument?

MR. WIEDT: Yes, sir.

(Arguments held off the record)

THE COURT: We will continue this until we get the briefs and the other things, and we will wait to see what happens.

Record at 57a.

Accordingly, we are unable to uphold the lower court's finding that appellant waived his Rule 1100 rights.

Our discussion might end at this point. Given the lower court's opinion, however, we have examined one further aspect of the case. As we noted in our statement of the case, in its opinion the lower court explains the delay between the completion of the suppression hearing and the actual trial by saying that it "postponed the commencement

[ 294 Pa. Super. Page 345]

    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 [in Paulinski ] . . ." Slip op. at 4. This statement, we believe, requires some comment, for otherwise our decision may be misunderstood.

As we have already indicated, the record does not support the court's statement that its postponement of the commencement of trial was "upon agreement by the Commonwealth and Defendant. " We may assume that appellant, as the defendant, was present, and therefore heard the court say, "We will continue this until we get the briefs and the other things, and we will wait to see what happens." However, mere silence by a defendant when a continuance is granted does not constitute agreement, or waiver. Commonwealth v. Frazier, 278 Pa. Superior Ct. 247, 420 A.2d 523 (1980); Commonwealth v. Garrison, 277 Pa. Superior Ct. 18, 419 A.2d 638 (1980); Commonwealth v. Brown, 264 Pa. Superior Ct. 127, 399 A.2d 699 (1979).

Nor is it evident from the record that the postponement of the commencement of trial was "at the request of defense counsel." Instead, the record indicates that the postponement was by mutual agreement. Specifically, when the trial began, the lower court said, in rejecting defense counsel's Rule 1100 argument:

We heard all the testimony on the Motion to Suppress in our case, and the only reason we did not proceed was because you, the Defense Counsel, Mr. Corbett [for the Commonwealth] and I all agreed that we would not do anything at all about this matter until such time as the Supreme Court acted.

Record at 67a.

Also, in this regard, it may be noted that the Commonwealth did not argue at trial, and does not argue now, that defense counsel requested a continuance or was otherwise responsible for the delay. To the contrary, in replying to defense counsel's Rule 1100 argument, the Commonwealth argued:

[ 294 Pa. Super. Page 346]

We would argue that the delay, any delay in this case was caused by the court, should be viewed as Court delay, should not be charged to the Commonwealth, and therefore, the 180 days should again continue to run from the date that Your Honor set this trial and denied the Motion to Suppress, which I believe you have already done. R. 65a (emphasis added).

The judgment of sentence is reversed and appellant discharged.

SHERTZ, Judge, concurring:

I agree with the result reached by the majority. However, rather than reach the issue of whether or not Appellant was tried within the period mandated by Rule 1100, Pa.R.Crim.P., I would affirm on the basis of insufficiency of the evidence.

The test of sufficiency of evidence is whether, accepting as true all the evidence presented by the prosecution and all reasonable inferences therefrom, which if believed, the jury could properly base its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime.

Commonwealth v. Smith, 283 Pa. Super.Ct. 360, 365, 423 A.2d 1296, 1298 (1981).

Instantly, Appellant was found guilty of operating a lottery.*fn1 At the time of his arrest, numbers slips indicating a total play of more than $3,000, together with currency totaling from $1,600, were discovered in Appellant's possession. These alone, however, were not sufficient to convict Appellant. As this Court stated in Commonwealth v. Lane, 242 Pa. Super.Ct. 283, 363 A.2d 1271 (1976):

[ 294 Pa. Super. Page 347]

In Commonwealth v. Bondi [217 Pa. Super. 133, 269 A.2d 398] supra, the defendant was found to be in possession of a card with 43 bets on it. In spite of the large number of bets, this Court held that without evidence as to whether the card was a writer's card or a player's card, the defendant's conviction for operating a lottery could not be sustained. In the present case, there was simply no evidence as to whether the slips possessed by appellant were those of a writer or those of a player. Normally the Commonwealth presents testimony of an officer familiar with lottery operations as to whether the slips possessed were writer's slips . . . . However, the lack of such testimony was fatal in this case.

Id., 242 Pa. Super. at 287, 363 A.2d 1273 (citations omitted). The same evidentiary deficiency was present and is similarly fatal in the instant case. Accordingly, I concur.

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