Appeal from the order of the Court of Common Pleas of Philadelphia County, Criminal Division at No. 84-07-2601-04.
Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
Alexander Hemphill, Philadelphia, for appellee.
Montemuro, Popovich and Watkins, JJ. Montemuro, J., concurs in the result.
[ 345 Pa. Super. Page 147]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Philadelphia County discharging the appellee, Gary F. Fooks, for violation of Pa.R.Crim.P. 1100. We reverse.
The facts with which we need to be concerned start with the Commonwealth's filing of its petition to extend the trial date of Mr. Fooks on September 19, 1984, which was two days after the mechanical run-date under Rule 1100 had expired.*fn1
Of equal interest here is the fact that on September 9, 1984, after informal discovery was completed, the court below scheduled a half-day bench trial for December 17, 1984. This was the earliest possible date, consistent with the court's business, that the case could be tried. The
[ 345 Pa. Super. Page 148]
record indicates, however, that no objection was lodged by the defendant or his counsel to this scheduling, despite the fact that the trial date was beyond the Rule 1100 run-date.
It was not until the date set for trial (December 17th) that the defendant's Rule 1100 rights came under scrutiny. The issue surfaced rather fortuitously after the court had conducted a jury waiver colloquy with the defendant, and the Commonwealth had asked to call its first witness.
Although the defendant's counsel stated he had no pretrial motions to dispose of at the commencement of the proceedings, thereafter, he moved to have the record show, and, thus, protect his client's Rule 1100 rights, that he felt the 4-5 months the Commonwealth's witness/victim was in the hospital was "not an excuse for extending the rule."
To put the matter in perspective, the court decided to list the history of the case on the record. In the course thereof, it noted that the Commonwealth's petition to extend was signed by the court two days after the run-date (see note 1, supra). Thereafter, the court cautioned the Commonwealth that it "ha[d] to get some excludable time, at least two days of excludable time chargeable to the defense in order to make the filing date timely."
It was the court's position that, absent excludable time, the Commonwealth's late filing meant that it would be "out of court." The Commonwealth disagreed and presented a three-fold argument to support its belief that the defendant should be tried.
First, the Commonwealth averred that the defendant's failure to file a written motion in opposition to its petition, as well as his counsel's statement at the start of the proceedings that there were no pre-trial motions to be disposed of, rendered the extension question moot, and it could not be resurrected sua sponte by the court.
Second, the Commonwealth stated that the absence of any pre-trial motion by the defendant, in conjunction with his being colloquied by the court and the Commonwealth calling its first witness resulted in a commencement of trial,
[ 345 Pa. Super. Page 149]
and, as a result, constituted a waiver of ...