Commonwealth v. Wallace

¶1concurring.

¶2While I am in accord with an affirmance of the judgment of sentence, I disagree with the majority opinion that the Rule 1100 issue has been waived. To the contrary, I arrive at the same conclusion after a consideration of the merits of the claim. The majority says the issue is waived because it was not raised prior to trial pursuant to section (f) of Rule *301100. However, the appellant did object prior to trial to the prosecution’s request for an extension beyond the 270-day period pursuant to section (c). At the time of this objection, appellant’s right to appeal the extension arose. He later preserved this right by raising it in post-trial motions. The appellant does not lose his right to seek appellate review of the trial court’s ruling to grant the Commonwealth’s request for extension over his objection by not later moving to dismiss the charges pursuant to section (f). Since the issue was not waived, it should have been addressed by the majority.

¶3The complaint against appellant was filed on September 6, 1973. By November 23, 1973, the case was ready for trial with all pre-trial motions reserved for the time of trial.1 This case was finally reached in the pool of cases ready for trial by May 30, 1974, shortly before the expiration of the Rule 1100 period. At this time the trial court heard appellant’s pre-trial motions which had been reserved for the time of trial. Normally, where pre-trial motions are reserved for the time of trial and the trial judge directs the parties to proceed with the hearing on the motion, this will mark the commencement of trial for the purpose of tolling the Rule 1100 period. Comment to Rule 1100. However, this maxim contemplates that the trial will follow immediately after the motion is heard and disposed of. The Rule 1100 period does not end if, as in this case, the trial did not immediately follow the pre-trial motion hearing.

¶4Here the appellant was granted his motion to suppress and the Commonwealth then appealed the ruling, having been granted an extension for this purpose. The Commonwealth was properly granted an extension for their appeal because to deny them this right would leave them without a remedy regarding any errors that may have occurred during the suppression hearing. They would be forced to try the case without the evidence upon which their case rested. The order granting the extension specified the period within *31which the trial shall commence as proscribed by section (c) of Rule 1100.2 The Commonwealth subsequently withdrew the appeal on September 17, 1974, primarily because a co-defendant agreed to testify for the Commonwealth so that the suppressed evidence was no longer essential to their case. Three days later on a Friday the defendant was arraigned, pleaded not guilty, and demanded a jury trial. Voir dire began the following Monday. These six days between the withdrawal of the appeal and commencement of trial was a reasonable period of time as the court had granted for the Commonwealth to prepare for trial and, therefore, should be included in the extension.

¶5It is clear from the succession of events that the Commonwealth proceeded as expeditiously as possible throughout the history of this case. The period of the extension, having been properly granted, is to be excluded from the 270-day period. Therefore, the trial did commence within the requisite 270 days from the filing of the complaint.