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COMMONWEALTH PENNSYLVANIA v. ROBIN JAY LEWIS (01/29/82)

filed: January 29, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBIN JAY LEWIS



No. 2329 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Columbia County, Nos. 91, 92, 93, 94, 95, 96, 97 and 104 of 1979.

COUNSEL

Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth, appellant.

David J. Foster, Lemoyne, for appellee.

Cercone, P.j., and Hester, Cavanaugh, Wickersham, McEwen, Wieand, Beck, Montemuro and Popovich, JJ.

Author: Wieand

[ 295 Pa. Super. Page 63]

The issue presented by this Commonwealth appeal is whether the entry of a guilty plea can be equated with commencement of trial for Rule 1100 purposes. We hold that the tendering of a guilty plea by an accused signifies the commencement of trial regardless of whether that plea is accepted immediately by the trial court or is taken under advisement. In so holding, we expressly overrule the earlier ruling of a panel of this Court in Commonwealth v. Cox, 276 Pa. Superior Ct. 29, 419 A.2d 78 (1980) (Watkins, J., dissenting).

The facts pertinent to the instant case are as follows. On March 8 and 10, 1979, complaints were filed charging Robin Jay Lewis with two counts of conspiracy*fn1 and several counts of possession with intent to deliver various controlled substances.*fn2 The run dates, in accordance with Pa.R.Crim.P. 1100, were September 4 and 6, 1979. On July 16, 1979, which was the scheduled date for trial, Lewis tendered a plea of guilty to the drug charges. The plea was entered as part of a plea bargain, under the terms of which the Commonwealth was to nol pros the criminal conspiracy charges and Lewis' sentence was not to exceed three years incarceration. The trial judge conducted a colloquy, took the plea under advisement and ordered a presentence investigation. On September 5, 1979, the date set for sentencing, the court rejected the plea bargain. Lewis was thereupon permitted to withdraw his plea of guilty. On September 7, the Commonwealth filed a petition for extension of time, and Lewis filed an application to dismiss. These applications were heard by the court on September 10, 1979, and on

[ 295 Pa. Super. Page 64]

November 5, 1979, an order was entered granting Lewis' application and dismissing the criminal action. The Commonwealth appealed.

Pa.R.Crim.P. 1100(a)(2) mandates the commencement of trial within 180 days from the filing of a criminal complaint. The rule is an administrative measure adopted by the Supreme Court pursuant to its rulemaking power and is designed to give substance to the constitutional guarantee of a speedy trial for criminal defendants. Commonwealth v. Juliano, 282 Pa. Superior Ct. 226, 229, 422 A.2d 1088, 1090 (1980), petition for allowance of appeal denied (1981). See also: Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1979). Section (b) of the rule provides that trial shall be deemed to commence on the date the trial judge calls the case to trial. The Comment to the Rule*fn3 contains a discussion pertaining to the commencement of trial, and cases construing the Rule have, on occasion, considered the point in the proceedings when trial commences.

The Comment provides: "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." (Emphasis added.) The meaning of "some other such first step in the trial" was discussed by then Chief Justice Eagen in his concurring opinion in Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) where he wrote: "[T]he principal concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than pro forma, event . . . . [E]ach of the events specifically referred to in the foregoing portion of the comment represents a degree of commitment of the court's time and resources such that the process of determining the defendant's guilt or innocence

[ 295 Pa. Super. Page 65]

    follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt-determining process is a 'first step in the trial' for purposes of Rule 1100." This Court accepted Chief Justice Eagen's comments in Commonwealth v. Taylor, 254 Pa. Superior Ct. 211, 214-15, 385 A.2d 984, 986 (1978), where it was held that "an event will not mark the commencement of trial under Rule 1100 unless it reflects a commitment of time and resources by the court below and leads directly ...


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