Commonwealth v. Potts

WIEAND, Judge:

William Potts was tried non-jury and was found guilty of simple assault¹ and failure to stop at the scene of an accident² as a result of his striking a pedestrian at Fifth Street and Oregon Avenue, Philadelphia, on April 1, 1985. On appeal, after oral post-trial motions were denied and a sentence of imprisonment imposed, Potts argues that the trial court erroneously denied a pre-trial motion to dismiss based upon the Commonwealth's alleged failure to comply with Pa.R.Crim.P. 1100. We find no merit in this argument and affirm the judgment of sentence.

In an opinion prepared by the trial court, it is suggested, and the author of the dissent agrees, that the Rule 1100 issue was waived because it was not the subject of written post-trial motions. The record is clear, however, and the Commonwealth agrees, that post-trial motions were made and argued orally at the conclusion of the trial and that the Rule 1100 issue was included therein.

Oral post-verdict motions are expressly allowed by Pa.R.Crim.P. 1123(b) and are effective to preserve issues raised thereby for appellate review. See: Commonwealth v. Aycock, 323 Pa.Super. 62, 470 A.2d 130 (1983); Commonwealth v. Lewis, 315 Pa.Super. 328, 330-331 n. 5, 461 A.2d 1305, 1306 n. 5 (1983); Commonwealth v. Von Aczel, 295 Pa.Super. 242, 245 n. 1, 441 A.2d 750, 751 n. 1 (1981); Commonwealth v. Kinsey, 249 Pa.Super. 1, 7, 375 A.2d 727, 730 (1977).

Pa.R.Crim.P. 1123(b) provides as follows:

(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the ten (10) day period on the record voluntarily and understanding^ waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that waiving of post-verdict motions shall preclude raising on appeal any issues which might have been raised in such motions.

The interpretation of this rule was before a panel of this Court in Commonwealth v. Kinsey, supra. The Court recognized that “one possible interpretation of the above-quoted language would make it the responsibility of the trial judge to establish on the record the defendant’s consent to this procedure.” Id., 249 Pa.Superior Ct. at 7, 375 A.2d at 730. However, the court rejected such an interpretation. “The requirement that a defendant agree on the record to the making of oral post-verdict motions [must] be construed consistently with the other provisions contained in Rule 1123. In short, this provision [must] be construed to protect, not defeat, a defendant’s appellate rights____ [To find that where the trial court fails to obtain defendant’s agreement on the record no issues are preserved for appellate review] is tantamount to the disfavored practice of presuming a waiver of valuable appellate rights from a silent record.” Id., 249 Pa.Superior Ct. at 14-15, 375 A.2d at 734 (Hoffman, J., Concurring). Therefore, the Court held:

If the trial judge has properly informed the defendant, upon the record in open court, of his post-verdict rights under 1123(c), and the defendant, by counsel, thereafter proceeds to make oral motions, these motions would be proper and effective under 1123(b). In the aforestated circumstances, the post-trial claims raised orally would be properly preserved for appellate review, and assuming no further written motions were timely filed, [only] arguments not included in the oral motions would be waived for appellate purposes.

Id., 249 Pa.Superior Ct. at 7, 375 A.2d at 730.

We agree with the Kinsey court. Rule 1123(b) was intended to provide a procedure for accelerating the disposition of post-trial motions. It was not intended as a “waiver trap” for defendants who are willing to proceed expeditiously to a conclusion of pending criminal charges. Appellant in the instant case elected to proceed in the manner provided by 1123(b); and the issues raised in this manner were preserved for appellate review. Therefore, we will decide the Rule 1100 issue on its merits.

The criminal complaint was signed on April 1, 1985. The run date for Rule 1100 purposes, therefore, was September 28, 1985. Trial commenced on November 12, 1985. However, thirty-seven days were excludable. On May 22, 1985, although the Commonwealth was ready to proceed with a preliminary hearing, the hearing was continued because of a defense request for a lineup. As a result, the preliminary hearing was not held until June 28,1985, thirty-seven days later. This period of thirty-seven days was a delay caused wholly by the defense and was excludable pursuant to Pa.R.Crim.P. 1100(d)(3)(ii). Therefore, the Rule 1100 run date was automatically extended to November 4, 1985.

The case was listed for trial on October 28,1985. On that date, the court heard argument on appellant’s motion to dismiss the charges pursuant to Rule 1100 and took the motion under advisement until October 30, 1985. On the latter date, the Commonwealth filed a petition for an extension of time pursuant to Rule 1100(c). The basis for the petition was that a Commonwealth witness had been hospitalized and, therefore, could not appear for trial. On November 12, 1985, prior to commencement of trial, the court granted the Commonwealth’s petition for extension and, at the same time, denied appellant’s motion to dismiss.

We hold that the petition for extension of time was properly granted.

An extension is proper if the trial court finds that, despite the exercise of due diligence by the Commonwealth, trial could not be commenced within the prescribed period. Rule 1100(c)(3); Commonwealth v. Bulling, [331 Pa.Super. 84, 90, 480 A.2d 254, 257 (1984) ]. “It is well settled that the illness of a Commonwealth witness may be a proper basis upon which to grant a Rule 1100 extension as the Commonwealth should not be penalized for events and circumstances which are wholly beyond its control.” Id., 331 Pa.Superior Ct. at 96, 480 A.2d at 260. “So long as the witness’ unavailability is through no fault of the Commonwealth, a finding of due diligence is warranted and an extension is proper.” Commonwealth v. Lafty, [333 Pa.Super. 428, 436, 482 A.2d 643, 647 (1984) ].

Commonwealth v. Kostra, 349 Pa.Super. 89, 98, 502 A.2d 1287, 1291 (1985). See: Commonwealth v. Burke, 344 Pa.Super. 288, 292, 496 A.2d 799, 801 (1985); Commonwealth v. Stewart, 343 Pa.Super. 514, 520-521, 495 A.2d 584, 587 (1985).

The judgment oí sentence is affirmed.

BROSKY, J., files a concurring opinion.

1 . 18 Pa.C.S. § 2701.

2 . 75 Pa.C.S. § 3742.