Com. v. Webb
| Decision Date | 13 April 1978 |
| Parties | COMMONWEALTH of Pennsylvania v. Charles WEBB, Appellant. |
| Court | Pennsylvania Superior Court |
Albert M. Nichols, Dist. Atty., Greensburg, submitted a brief for Commonwealth, appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.
VAN der VOORT, J., files an opinion in support of affirmance in which JACOBS, President Judge and PRICE, J., join.
HOFFMAN, J., files an opinion in support of reversal in which CERCONE and SPAETH, JJ., join.
WATKINS, former President Judge, did not participate in the consideration or decision of this case.
VAN der VOORT, Judge.
Complaints were filed against appellant Charles Webb on December 17, 1974, charging him with two counts of possessing illegal drugs with intent to deliver. Appellant was not arrested until ten days later, December 27, 1974. Since the 180th day from the filing of the complaints was a Sunday, under Pa.Rule of Criminal Procedure 1100 appellant should have been brought to trial, if there were no extensions or continuances, by Monday, June 16, 1975. Trial was scheduled for Wednesday, June 18, 1975, the 183rd day following the filing of the complaints. On the day set for trial, appellant, through his attorney, requested a continuance. Appellant was advised that he had a right to trial within 180 days and that a continuance would put his case beyond the required period. (The 180 day period had already expired, of course, if there were no automatic extensions). Appellant agreed on the record to waive the 180 day rule and his right to a speedy trial, and the case was continued to September 16, 1975. On that date, the case was called for trial, the parties were sworn, and appellant's new counsel presented an oral application to dismiss the indictment for failure of the Commonwealth to bring appellant to trial within 180 days. The assistant district attorney objected to the fact that the matter of dismissal had not previously been presented to Appellant argues that the lower court erred in refusing to grant his application to quash the indictments for failure of the Commonwealth to try him within 180 days. Pennsylvania Rule of Criminal Procedure 306 states: "All pretrial motions for relief shall be in writing." Three members of our Court, by over-extending Commonwealth v. Keefer, 470 Pa. 142, 367 A.2d 1082 (1976) would make this rule meaningless. In Keefer, a juvenile who objected to transfer of his robbery and conspiracy charges from juvenile to criminal division, raised his objection at four stages: at the transfer hearing, at the preliminary hearing, orally at the commencement of trial, and in post-trial motions. The Supreme Court found under those circumstances that the appellant's failure to file a written pre-trial motion did not constitute a waiver of the issue. The situation in the case before us is totally different; appellant Charles Webb did not bring the Rule 1100 issue to the attention of the lower court until the case was called to trial, and then raised it only orally. I believe that our court should apply the rules of criminal procedure evenhandedly. If the Commonwealth is to be held strictly to a period of 180 days for bringing cases to trial, then defendants in criminal cases should be required to comply with the rules with respect to time and manner of filing applications for dismissal. I would find that appellant waived his right to a trial within 180 days by his failure to file a timely written application to dismiss. 1
the court, and claimed that appellant had been a "fugitive" between the date the complaints were filed and the date appellant was arrested. Without hearing argument on whether or not appellant was a fugitive, the lower court denied the oral application to suppress, and the trial commenced. A written application to quash the indictments was not filed until September 18, 1975, the date appellant was found guilty. Appeal was taken to our court from the judgment of sentence.
Appellant argues that the failure of his first trial attorney to advise him that 180 days had already elapsed constituted ineffective assistance of counsel. Since appellant was advised on the record of his right to trial within 180 days and could have counted the days himself, I would find this back-door approach to the preceding argument also non-meritorious.
Appellant argues that the lower court erred in refusing to grant his demurrer at the close of the prosecution's case, since the prosecution did not introduce any evidence to show that appellant was not registered to possess controlled substances. In Commonwealth v. Stawinsky, 234 Pa.Super. 308, 339 A.2d 91 (1975), allocatur refused, our court held that there was no burden on the Commonwealth to prove the absence of such registration. The case before us does not require a reversal of our court's position in Stawinsky.
Appellant's final argument is that the trial court erred in refusing to read to the jury the following requested point for charge: "If you believe that the accused acted only as a conduit in the transactions by which Miss Readinger (the police undercover agent) procured the marijuana, and that the accused did not profit because of the role he played, then you must acquit the accused of the crimes charged." Appellant cites Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972) as support for his position. Simione involved a defendant who was charged with the sale of a controlled substance; in fact, the Commonwealth's Bill of Particulars specified "sale". The Supreme Court held that when the Commonwealth specified that it would prove that a sale had taken place, the Commonwealth would have to prove that an actual sale had taken place, and the trial court would have to charge the jury that a defendant could be an agent or conduit without being a seller. The case before us involves a charge of possession with intent The judgment of sentence is properly affirmed.
to deliver; the lower [254 Pa.Super. 435] court did not err in refusing to read to the jury a point for charge that related to selling controlled substances.
WATKINS, President Judge, did not participate in the consideration or decision in this case.
Appellant contends that the lower court erred in refusing to dismiss the charges against him because the Commonwealth violated Rule 1100(a)(2), Pa.R.Crim.P.; 19 P.S. Appendix. I would remand for an evidentiary hearing on whether the Rule 1100(a)(2) period expired.
On December 17, 1974, a complaint was filed charging appellant with two counts of violating the Controlled Substance, Drug, Device and Cosmetic Act. 1 On December 27, 1974, Westmoreland County officials arrested appellant in his home. Trial was originally scheduled for June 18, 1975, 183 days after the complaint was filed. On that date, appellant's counsel, a Public Defender, requested a continuance until the next term of court because of medical problems in appellant's family and because of appellant's involvement in an ongoing civil suit. At a hearing on the proposed continuance, appellant's counsel told the court that he had discussed the continuance with appellant: "I explained to him that he has a right to a speedy trial and the 180 days would have been exceeded by the next term of Court, and it's still his desire to have this case continued and waives the 180 day rule." The Court requested counsel to question appellant directly. Thereupon, the following interchange occurred:
The lower court then continued the case until September 16, 1975. Because appellant's original counsel resigned from the Public Defender's Office sometime before September 16, 1975, another lawyer from the Public Defender's Office assumed the role of appellant's counsel. On September 16, 1975, after the court called the case to trial and swore the parties, appellant's new counsel made an oral motion, on the record, for the dismissal of the charges with prejudice pursuant to Rule 1100(f). In particular, appellant's counsel contended that the Rule 1100(a)(2) 2 period had expired before appellant's June 18, 1975 waiver, and that appellant had only waived his right to include the period between June 18, 1975, and trial for purposes of Rule 1100 computations. The Commonwealth presented a two-fold response. First, it asserted that the 180 day period had not expired prior to June 18, 1975, because appellant had been a fugitive between December 17, 1974, the date the Commonwealth filed its complaint, and December 27, 1974, the date of appellant's arrest. The attorney alleged that the Commonwealth, despite the exercise of due diligence, could not ascertain appellant's whereabouts. Second, the Commonwealth argued that appellant waived his Rule 1100 rights in toto. More specifically, appellant waived his right to include any time before June 18, 1975, in his Rule 1100...
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Com. v. Hall
...and thus hold appellant has waived his Rule 1100 claim by failing to file a written application to dismiss. See, Commonwealth v. Webb, 254 Pa.Super. 429, 386 A.2d 25 (1978) (Opinion in Support of Appellant next challenges the competency of the Commonwealth's chief witness, Phillip Skipworth......