Com. v. Vecchione

• Decision Date: 25 June 1984
• Citation: 476 A.2d 403,327 Pa.Super. 548
• Parties: COMMONWEALTH of Pennsylvania v. Thomas Gregory VECCHIONE, Appellant.
• Court: Pennsylvania Superior Court

Page 403

476 A.2d 403

327 Pa.Super. 548

COMMONWEALTH of Pennsylvania v. Thomas Gregory VECCHIONE, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 7, 1983.

Filed April 13, 1984.

Reargument Denied June 25, 1984.

Alan Ellis, Philadelphia, for appellant.

Joseph H. Kleinfelter, Deputy Dist. Atty., Harrisburg, for Commonwealth, appellee.

Before McEWEN, JOHNSON and POPOVICH, JJ.

JOHNSON, Judge:

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. ¹ 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 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 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. 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 on whether or not the motion is properly before the lower court prior to trial not whether or not the motion is docketed in the clerk of court's office prior to trial. See Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977).

In the instant case, the record certified from the trial court does not contain any motion for dismissal under Rule 1100(f). A review of the certified docket entries does not disclose the filing of such motion. In fact, the only references to such motion occurred immediately before trial when the following occurred:

MR. FOGELNEST [Appellant's Counsel]: ..., just for the purpose of preserving the record, I have given Mr. Kleinfelter the copy of a motion to dismiss pursuant to Rule 1100. We waive argument on it.

THE COURT: Did Judge Morgan consider that?

MR. KLEINFELTER [Deputy District Attorney]: No. Your Honor. This is the first time that matter has been raised.

The rule did run on July 6, 1981; however, it is the Commonwealth's position that on each and every appearance before that date and subsequent thereto, the defendant appeared with his counsel, entered a knowing, intelligent, and voluntary waiver of the rule through this date.

MR. FOGELNEST: I have no argument to make to the Court, but because of the Appellate Court's being the way they are, I would like to make sure that I filed it, Judge.

THE COURT: Surely.

MR. KLEINFELTER: You are waiving the hearing on that?

MR. FOGELNEST: At this point, sure.

N.T., Transcript of Proceedings, December 17, 1981 at 3-4. We have found no other reference to a motion. More importantly, we have not found any order denying the motion or any other proceeding in which the motion was considered, other than during consideration of post-trial motions.

While, as indicated by the passage quoted above, appellant's counsel displayed concern for preserving a Rule 1100 claim, we do not believe that he has succeeded in doing so. We note initially that the passage quoted above reveals only the statement of appellant's counsel that a copy of a Rule 1100 motion was given to the deputy district attorney, not that appellant's counsel preserved the Rule 1100 claim by applying to the trial judge for dismissal of appellant's charges. See Commonwealth v. Davis, supra. If one is to conclude that a motion to dismiss was brought before the trial judge, it must be implied from appellant's counsel's oral statements or it must be inferred from counsel's use of the word "copy" that the original written motion was given to the trial judge. If indeed a motion was made below, either orally or by presentation of the original unfiled written motion, we conclude that under either alternative appellant's Rule 1100 claim is not properly before us.

In Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980), our Supreme Court held that an oral motion to dismiss was insufficient to preserve a Rule 1100 claim for review. In interpreting Rule 1100(f) to require a written application for dismissal, the court concluded that this interpretation would provide the trial courts "with specific facts and issues for determination" and provide "certainty in the record on appeal...." Id. at 544, 414 A.2d at 1024; accord Commonwealth v. Hall, 267 Pa.Super. 204, 406 A.2d 765 (1979). Accordingly, if appellant's motion to dismiss is viewed as having been derived from his counsel's oral statements, it would clearly be insufficient under Drake.

If appellant's counsel presented the court with an unfiled written motion to dismiss, in light of Commonwealth v. Wharton, supra, it is unclear whether this procedure is sufficient to preserve his claim. However, even if we assume arguendo that this procedure is sufficient to bring the motion before the trial court, appellant's counsel declined to argue his motion indicating that he just wanted to file the motion, and he did not press the motion until a ruling was made by the trial court. Absent a ruling by the trial court, appellant cannot assert that the trial court committed error in not discharging him pursuant to Rule 1100. Cf. 9 Standard Pa.Practice 2d § 56:8 (1982); 75 Am.Jur.2d Trials §§ 173, 176. Since the rules of Criminal Procedure provide that all pretrial motions must be determined prior to trial, Pa.R.Crim.P. 310, and Section (f) of Rule 1100 specifically limits appellant's ability to raise a speedy trial claim to "any time before trial," we therefore conclude that appellant's failure to have the trial court rule on the merits of his Rule 1100 claim prior to trial results in a waiver of his claim. Cf. Commonwealth v. Davis, supra; 60 C.J.S. Motions & Orders § 42 (where no ruling appears to have been made on a motion the presumption is, unless it otherwise appears, that the...