No. 2456 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, January Term, 1979, at Nos. 1214-1216.
Steven H. Goldblatt, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
John W. Packel, Assistant Public Defender, Philadelphia, for appellee.
Brosky, Hoffman and Cirillo,*fn* JJ. Brosky, J., filed a dissenting opinion.
[ 301 Pa. Super. Page 230]
In this appeal from an order arresting judgment, the Commonwealth contends that the lower court erred in holding that appellee had not been timely tried. For the reasons that follow, we reverse the lower court and remand for disposition of appellee's remaining post-trial motions.*fn1
On June 6, 1978 appellee, then fifteen years old, committed the instant robbery and an unrelated robbery. He was arrested for the present offense on July 18, 1978. The Commonwealth filed a juvenile delinquency petition, and subsequently notified appellee it would seek to certify him to stand trial as an adult in criminal court on both offenses. A hearing for both robberies was scheduled for November 14, 1978, but the complaining witness in the present case was unavailable. The juvenile court thus rescheduled the hearing on this offense, and proceeded with the hearing on the second robbery. After finding a prima facie case, the court heard testimony as to appellee's amenability to treatment as a juvenile. The court then ordered him committed to the maximum security unit at Cornwells Heights Youth Development Center (Cornwells). On December 12, 1978, it held a
[ 301 Pa. Super. Page 231]
certification hearing on the instant offense, found a prima facie case, but postponed the amenability determination pending a report on appellee's progress at Cornwells. On January 8, 1979 based upon the report of the director of Cornwells, the court found appellee not amenable to treatment in the juvenile system, and certified him to criminal court. His non-jury trial commenced on June 25, 1979, 341 days after the delinquency petition was filed, but 168 days after certification. Appellee was found guilty of robbery, theft, receiving stolen property, simple assault and criminal conspiracy. The next day, the trial judge contacted appellee's attorney to suggest that he allege in post-trial motions that Pa.R.Crim.P. 1100 was violated. Appellee subsequently raised that issue*fn2 and several others in post-trial motions. In granting appellee's motions, the trial court concluded that appellee had not been timely tried under rule 1100, and that the juvenile court had improperly certified him to criminal court. Consequently, the trial court ordered him discharged, prompting this appeal.
The Commonwealth argues that the lower court erred in concluding that appellee had not been timely tried under rule 1100.*fn3 We agree. In Commonwealth v. Bell, 245 Pa. Superior Ct. 164, 369 A.2d 345 (1976), aff'd mem., 481 Pa. 229, 392 A.2d 691 (1978), our Court held that when an action commenced in juvenile court by a delinquency petition is subsequently certified to criminal court, the rule 1100 period begins to run at the time of certification. Accord, Pa.R.Crim.P. 1100(a)(3) (effective January 1, 1982). The Court in
[ 301 Pa. Super. Page 232]
delinquency proceedings,*fn4 but whether that clause prohibits our Supreme Court from adopting a speedy trial rule that does not apply to juvenile delinquency actions until they have been transferred to criminal court.
Although we agree with the lower court that juveniles are treated differently from adults with respect to their rule 1100 rights, "not every difference in treatment amounts to a denial of equal protection; the difference must be without rational support." Commonwealth v. Walters, 250 Pa. Superior Ct. 446, 450, 378 A.2d 1232, 1234 (1977) citing Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) and Commonwealth v. Staub, 461 Pa. 486, 337 A.2d 258 (1975).*fn5 Because we believe that our Supreme Court could rationally adopt a rule of criminal procedure establishing a fixed period for bringing criminal defendants to trial without applying that rule to juvenile delinquency proceedings, we conclude that the equal protection clause does not mandate that the rule 1100 period begin upon the filing of the ...