VAN der VOORT, Judge:
The Commonwealth of Pennsylvania has appealed from two Orders of Court of the Court of Common Pleas of Philadelphia County by which the defendant following convictions was discharged pursuant to Pa.R.Crim.P. 1100.1 The relevant facts of each of the two cases being the same, the Commonwealth was granted permission to consolidate the appeals.
On November 29, 1974, the defendant and two co-defendants entered a jewelry store in Philadelphia and robbed the employees of various items of jewelry and cash. The police apprehended the three individuals in the store and discovered that the defendant was carrying a firearm. A complaint2 was filed against the defendant on November 30, 1974 for the jewelry store robbery and on that same date a second complaint3 was filed against him for the robbery of a [480] Gino’s Restaurant that occurred on November 24, 1974. Preliminary hearings for the two offenses were set for December 6, 1974. On that date, the preliminary hearings were continued to December 17, 1974. 0 However, there appears to be a discrepancy on the record as to why the hearings were continued. The Municipal Court Hearing Sheet indicates that the cases were continued due to the absence of defense counsel. The Municipal Court transcript indicates that the co-defendant failed to appear. On December 17, 1974, the date of the continued preliminary hearings, a bench warrant was issued for the defendant because he failed to appear. The Commonwealth alleges that it was not until March 11, 1975 that it discovered that the defendant was lodged in the Delaware County Prison at Broad Meadows on a Delaware County robbery charge. The preliminary hearings were then-scheduled for May 27, 1975. On that date, a voluntary defender was appointed; however, no judge was available and the record indicates that the defendant was incarcerated in the Lewisburg Federal Penitentiary. Apparently the information regarding the defendant’s incarceration in Lewisburg was erroneous, but no explanation of how this information came to pass is provided for by either party or the record. The case was then continued from May 27, 1975 to June 5, 1975, at which time it was continued again to July 3, 1975. The reason for this continuation was that it was the belief that the defendant was still in the Lewisburg Prison. On July 2, 1975, the case was continued to July 7, 1975 due to the failure of a Commonwealth witness to appear. July 7, 1975, brought [481] another continuation, the reason for which was that the judge assigned to hear the case declined to do so because there was no transcript of the prior proceedings. It was then referred to the court administrator who listed the case for August 18, 1975. On that date the case was continued because all parties persisted in the mistaken belief that the defendant was still in the Lewisburg Prison. On August 26, 1975, the district attorney filed an application for an order extending the time for commencement of trial pursuant to Rule 1100(c)4 of the Pennsylvania Rules of Criminal Procedure. A hearing on the Commonwealth’s application was scheduled for September 2, 1975. However, on that date the hearing was continued in order to give newly appointed defense counsel5 an opportunity to answer the application. The defendant’s preliminary hearing was finally held on September 4, 1975, whereafter he was held for court. On September 16, 1975; the hearing on the Commonwealth’s application for an extension of time in which to bring the defendant to trial was continued to September 23, 1975 because the district attorney was unavailable. Following the hearing on September 23, 1975, the court granted the Commonwealth an extension of time to October 12, 1975.6 [482] Both robbery cases were listed for trial on October 9, 1975; however, the Commonwealth moved to trial on the jewelry store robbery and petitioned the court to extend the time for trial on the Gino’s Restaurant robbery until the completion of the jewelry store robbery case. This request was granted by the lower court. At no time prior to either trial did the defendant file a written application under Rule 1100(f)7 to have the charges dismissed.
On October 20, 1975, a jury found the appellant guilty on all charges stemming from his participation in the jewelry store robbery except the charge of conspiracy. On October 22, 1975, having waived his right to a jury trial, the defendant was found guilty by a judge on all the charges stemming from the Gino’s Restaurant robbery. Post verdict motions were filed in both cases on October 27,1975 wherein defendant contended that he was not brought to trial on either case within the period of time required under Rule 1100 of the Pennsylvania Rules of Criminal Procedure and therefore the convictions should be vacated and the cases dismissed. Judge Ivins granted the defendant’s motion in arrest of judgment and discharged the appellant on the jewelry store robbery. The basis of his decision was that contrary to the hearing judge’s decision the Commonwealth’s petition for an extension of time was not filed within 180 days excluding any automatic extensions required under Rule 1100. Judge Richette concurred with Judge Ivins’ reasoning and likewise discharged the defendant in the case concerning the robbery of the Gino’s Restaurant. Following the orders of court discharging the defendant, the Commonwealth appealed to this Court.
Free access — add to your briefcase to read the full text and ask questions with AI
VAN der VOORT, Judge:
The Commonwealth of Pennsylvania has appealed from two Orders of Court of the Court of Common Pleas of Philadelphia County by which the defendant following convictions was discharged pursuant to Pa.R.Crim.P. 1100.1 The relevant facts of each of the two cases being the same, the Commonwealth was granted permission to consolidate the appeals.
On November 29, 1974, the defendant and two co-defendants entered a jewelry store in Philadelphia and robbed the employees of various items of jewelry and cash. The police apprehended the three individuals in the store and discovered that the defendant was carrying a firearm. A complaint2 was filed against the defendant on November 30, 1974 for the jewelry store robbery and on that same date a second complaint3 was filed against him for the robbery of a [480] Gino’s Restaurant that occurred on November 24, 1974. Preliminary hearings for the two offenses were set for December 6, 1974. On that date, the preliminary hearings were continued to December 17, 1974. 0 However, there appears to be a discrepancy on the record as to why the hearings were continued. The Municipal Court Hearing Sheet indicates that the cases were continued due to the absence of defense counsel. The Municipal Court transcript indicates that the co-defendant failed to appear. On December 17, 1974, the date of the continued preliminary hearings, a bench warrant was issued for the defendant because he failed to appear. The Commonwealth alleges that it was not until March 11, 1975 that it discovered that the defendant was lodged in the Delaware County Prison at Broad Meadows on a Delaware County robbery charge. The preliminary hearings were then-scheduled for May 27, 1975. On that date, a voluntary defender was appointed; however, no judge was available and the record indicates that the defendant was incarcerated in the Lewisburg Federal Penitentiary. Apparently the information regarding the defendant’s incarceration in Lewisburg was erroneous, but no explanation of how this information came to pass is provided for by either party or the record. The case was then continued from May 27, 1975 to June 5, 1975, at which time it was continued again to July 3, 1975. The reason for this continuation was that it was the belief that the defendant was still in the Lewisburg Prison. On July 2, 1975, the case was continued to July 7, 1975 due to the failure of a Commonwealth witness to appear. July 7, 1975, brought [481] another continuation, the reason for which was that the judge assigned to hear the case declined to do so because there was no transcript of the prior proceedings. It was then referred to the court administrator who listed the case for August 18, 1975. On that date the case was continued because all parties persisted in the mistaken belief that the defendant was still in the Lewisburg Prison. On August 26, 1975, the district attorney filed an application for an order extending the time for commencement of trial pursuant to Rule 1100(c)4 of the Pennsylvania Rules of Criminal Procedure. A hearing on the Commonwealth’s application was scheduled for September 2, 1975. However, on that date the hearing was continued in order to give newly appointed defense counsel5 an opportunity to answer the application. The defendant’s preliminary hearing was finally held on September 4, 1975, whereafter he was held for court. On September 16, 1975; the hearing on the Commonwealth’s application for an extension of time in which to bring the defendant to trial was continued to September 23, 1975 because the district attorney was unavailable. Following the hearing on September 23, 1975, the court granted the Commonwealth an extension of time to October 12, 1975.6 [482] Both robbery cases were listed for trial on October 9, 1975; however, the Commonwealth moved to trial on the jewelry store robbery and petitioned the court to extend the time for trial on the Gino’s Restaurant robbery until the completion of the jewelry store robbery case. This request was granted by the lower court. At no time prior to either trial did the defendant file a written application under Rule 1100(f)7 to have the charges dismissed.
On October 20, 1975, a jury found the appellant guilty on all charges stemming from his participation in the jewelry store robbery except the charge of conspiracy. On October 22, 1975, having waived his right to a jury trial, the defendant was found guilty by a judge on all the charges stemming from the Gino’s Restaurant robbery. Post verdict motions were filed in both cases on October 27,1975 wherein defendant contended that he was not brought to trial on either case within the period of time required under Rule 1100 of the Pennsylvania Rules of Criminal Procedure and therefore the convictions should be vacated and the cases dismissed. Judge Ivins granted the defendant’s motion in arrest of judgment and discharged the appellant on the jewelry store robbery. The basis of his decision was that contrary to the hearing judge’s decision the Commonwealth’s petition for an extension of time was not filed within 180 days excluding any automatic extensions required under Rule 1100. Judge Richette concurred with Judge Ivins’ reasoning and likewise discharged the defendant in the case concerning the robbery of the Gino’s Restaurant. Following the orders of court discharging the defendant, the Commonwealth appealed to this Court.
Several issues are presented by the Commonwealth for our review. However, initially we must consider the issue raised by the Commonwealth that the defendant waived his [483] right to raise the argument that he should have been discharged under Rule 1100(f). The Commonwealth maintains that the defendant’s failure to file a written application prior to the commencement of trial constitutes a waiver of that claim. It argues that although the defendant participated in the hearing on the Commonwealth’s petition for an extension of time and although the issue was raised orally prior to trial, strict compliance with Rule 1100(f) requires a written application made prior to trial before such relief can be considered by the court. In the present case, the first time the issue was presented in writing was in the defendant’s post-verdict motions. The court entertaining the post-verdict motion, Ivins, J. (later joined by Richette, J.) had to confront the same issue facing us, i. e., did the defendant waive his right to raise the claim under Rule 1100(f) since he failed to file a written application. The lower court ruled that he had not waived his right under 1100(f) because he had prior to trial orally argued that the trial court should override Judge Greenburg’s order granting the Commonwealth an extension. The court then proceeded to conduct another full hearing on the issue of whether or not the Commonwealth’s petition under Rule 1100(c) was timely filed. It has been the rule in this Commonwealth for some time that the proper method of challenging the denial of a right to a speedy trial has been by filing a motion to quash the indictment. Commonwealth v. Roundtree, 458 Pa. 351, 326 A.2d 285 (1974); Commonwealth v. Gates, 429 Pa. 453, 240 A.2d 815 (1968). With the promulgation of Rule 1100 specific time limits and procedures have been codified for the purposes of protecting an accused’s right to a speedy trial and making the standards to be applied more manageable. Strict compliance with the dictates of the Rule are therefore necessary in order to prevent confusion and to preserve its proper function. Accordingly, we find that by the defendant’s failure to file a written application before trial pursuant to Rule 1100(f) he has waived his right to have that issue considered.8
[484] Having determined that it was error for the lower court to have discharged the defendant, it is unnecessary to discuss the remaining issues raised by the Commonwealth.
The Order of the Court below of June 9, 1976 vacating the verdicts and discharging the defendant are hereby reversed and said verdicts are reinstated and the cases are remanded for sentencing.
PRICE, J., concurs in the result.
HOFFMAN, J., files a dissenting opinion.
SPAETH, J., notes his dissent.