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filed: April 13, 1984.


No. 403 Harrisburg, 1982, Appeal from the Judgment of Sentence of October 22, 1982, Court of Common Pleas, Dauphin County, Criminal Division, No. 306 C.D. 1981.


Alan Ellis, Philadelphia, for appellant.

Joseph H. Kleinfelter, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

McEwen, Johnson and Popovich, JJ. Popovich, J., filed a concurring statement.

Author: Johnson

[ 327 Pa. Super. Page 552]

This is an appeal from judgment of sentence imposed upon appellant, Thomas G. Vecchione, for being convicted of possession of controlled substances with the intent to deliver.*fn1 After timely post-trial motions were filed and denied, appellant was sentenced to ten (10) to twenty-three (23) months in Dauphin County Prison, to pay a fine of $10,000 and to pay the costs of prosecution. This appeal was taken.

The incident that is the subject of this appeal began on January 7, 1981 when appellant's flight to Philadelphia from State College, Pennsylvania landed for an interim stopover in Harrisburg, Pennsylvania. The pilot made an announcement over the internal intercom of the plane that passengers proceeding to Philadelphia had to disembark with their hand-carried articles and undergo security screening since proper screening procedures were not available in State College. While handing the passengers their hand-carried

[ 327 Pa. Super. Page 553]

    articles, the pilot twice refused appellant permission to leave his suitcase on the plane. As the pilot lead the passengers to the screening area, he noticed appellant walk in a direction away from the screening area. After gaining appellant's attention and learning that appellant wished to place a phone call, the pilot stated that appellant would first have to go through security screening. Appellant then went to the security screening area. He placed his suitcase on the x-ray machine for viewing. The x-ray technician, Susan Stilo, observed an unidentifable mass in appellant's suitcase. She asked appellant if she could open the suitcase. He refused her permission. Then he grabbed his suitcase and exited the screening area walking briskly.

The police officer on duty at the screening area, Officer David Trott, shouted to appellant to stop; whereupon appellant ran. Other airport police officers pursued appellant on foot outside the terminal. After momentarily being lost from sight, appellant reappeared, walking toward the officers without the suitcase. During a search of the area, the suitcase was found on an embankment near some railroad tracks. Also, a ticket bearing the name "J. Williams" was found on the railroad tracks. Both objects were retrieved and returned to the terminal security office, where appellant had been taken by another officer.

Subsequently, the suitcase was re-examined by x-ray by Officer Trott and other members of the airport police. Members of the Army Explosive Ordinance Disposal detail at Fort Indiantown Gap were summoned and a search warrant was secured by Officer Trott. The suitcase was opened mechanically away from the terminal by the army explosives experts. The suitcase did not contain a bomb, but it did contain one and one-half pounds of marijuana and $20,990.40 in cash. Prior to trial, appellant moved to suppress the marijuana and cash. The suppression court held that appellant voluntarily submitted his suitcase to the search, that the warrant secured was based on adequate facts to support a finding of probable cause, and that the

[ 327 Pa. Super. Page 554]

    search warrant was surplusage because a warrantless search was permissible since the bag was abandoned.

On appeal, appellant asserts that his rights to a speedy trial were violated and that the trial court erred in denying his motion to suppress the marijuana and cash seized. We affirm.

The initial issue confronting us is whether appellant should be ordered discharged because his right to speedy trial, pursuant to Pa.R.Crim.P. 1100 was allegedly violated. We do not reach this issue, however, because the claim is not properly preserved for our review.

Section (f) of Rule 1100 states that:

[a]t any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.

Pa.R.Crim.P. 1100(f), 42 Pa.C.S.A. In Commonwealth v. Davis, 261 Pa. Super. 204, 395 A.2d 1388 (1978), we interpreted this provision of Rule 1100 and said in pertinent part the following:

To establish a Rule 1100 claim, the defendant is obliged to have the lower court rule on its merits prior to trial. Thus, he must . . . file a motion under Rule 1100(f) . . . so that . . . the facts and issues come before the court. Otherwise, his Rule 1100 claim will be waived . . . .

Id., 261 Pa. Superior Ct. at 208, 395 A.2d at 1389-90 (citations omitted); accord Commonwealth v. Singleton, 313 Pa. Super. 224, 459 A.2d 821 (1983); Commonwealth v. McFadden, 300 Pa. Super. 299, 446 A.2d 624 (1982). However, since it is the court, not the clerk of court's office which must act on the motion to dismiss, the question of filing should be decided ...

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