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COMMONWEALTH PENNSYLVANIA v. ANTHONY MERRIWETHER (03/02/89)

filed: March 2, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ANTHONY MERRIWETHER, APPELLANT



Appeal from Judgment of Sentence July 23, 1987, in the Court of Common Pleas of Allegheny County, Criminal No. 8503282A.

COUNSEL

James R. Wilson, Pittsburgh, for appellant.

Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Com., appellee.

Olszewski, Del Sole and Kelly, JJ.

Author: Olszewski

[ 382 Pa. Super. Page 413]

This is an appeal from the judgment of sentence following appellant's conviction for violations of the Pennsylvania

[ 382 Pa. Super. Page 414]

Uniform Firearms Act, 18 Pa.C.S.A. ยง 6101, et seq. We affirm.

The procedural history of this case follows. A criminal complaint against appellant was filed on March 13, 1985. On August 23, 1985, appellant filed an omnibus pre-trial motion seeking suppression of certain evidence. A hearing on this motion was held before the Honorable Samuel Strauss on August 27, 1985. After all the evidence relating to the suppression motion had been presented, the trial judge adjudicated appellant guilty. At this point, a clerk reminded the judge that the proceeding was only a suppression hearing. The judge then denied the suppression motion. Following the judge's decision on the suppression motion, the Commonwealth proceeded to incorporate the evidence presented into its case in chief. Before the Commonwealth rested, however, the trial judge stated that appellant was guilty "unless he had something to offer." The defense rested at this point. The Commonwealth, however, requested permission to introduce further evidence pertaining to the merits of the case. It was necessary at this point for the Commonwealth to remind the trial judge that this evidence pertained to the merits of the case and not to the sentencing of appellant. Following introduction of this evidence, the trial judge again found appellant guilty.

On September 9, 1985 appellant filed post-verdict motions. These motions were denied by the trial court on December 11, 1985. On April 24, 1986, appellant filed amended post-verdict motions stating, inter alia, that he was never advised of his right to a jury trial. On April 30, 1986, appellant was granted a new trial based on the absence of an on-the-record colloquy of jury trial waiver.

On July 28, 1986 appellant filed an omnibus pre-trial motion seeking suppression of evidence. A hearing on this motion was held before the Honorable Donna Jo McDaniel. Appellant's counsel also made an oral motion to dismiss based on the violation of Rule 1100. These motions were denied and appellant proceeded immediately to a bench trial

[ 382 Pa. Super. Page 415]

    where he was convicted. Post-trial motions were timely filed and denied. Appellant was sentenced and thereafter filed the instant appeal.

Initially, we deal with appellant's claim that he was brought to trial in violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. The crux of appellant's claim is that the proceeding before Judge Strauss did not amount to a trial for the purposes of Pa.R.Crim.Pro. 1100.*fn1 Therefore, appellant contends, as a proper trial did not commence until October 1986, his rights under the Speedy Trial Act were violated and his conviction should be vacated and the charges against him dismissed.

Pennsylvania Rule of Criminal Procedure 1100(a)(2) requires that a defendant be brought to trial within 180 days from the date the complaint was filed. If a defendant is not brought to trial during this time, he may petition the court to dismiss the charges pursuant to Rule 1100(f). For purposes of Rule 1100, a trial is deemed to commence on the date the judge calls the case to trial or the defendant tenders a plea of guilty or nolo contendre. Rule 1100(b) (emphasis supplied). Further elucidation of the above standard is provided by the following comment to Rule 1100.

For the purpose of this rule 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. With regard to the hearing of motions reserved for the ...


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