Pa. Super. 595, 504 A.2d 1310 (1986); Commonwealth v. Richardson, 347 Pa. Super. 564, 500 A.2d 1200 (1985); Commonwealth v. Gallagher, 341 Pa. Super. 152, 491 A.2d 196 (1985); Commonwealth v. Johnson, 340 Pa. Super. 26, 489 A.2d 821 (1985); Commonwealth v. Bunch, 329 Pa. Super. 101, 477 A.2d 1372 (1984); Commonwealth v. Kearse, 326 Pa. Super. 1, 473 A.2d 577 (1984); Commonwealth v. Toomey, 321 Pa. Super. 281, 468 A.2d 479 (1984); Commonwealth v. Gonce, 320 Pa. Super. 19, 466 A.2d 1039 (1983); Commonwealth v. Zabala, 310 Pa. Super. 301, 456 A.2d 622 (1983); Commonwealth v. Tabas, 308 Pa. Super. 43, 454 A.2d 12 (1982); Commonwealth v. Brunner, 305 Pa. Super. 411, 451 A.2d 714 (1982), vacated on other grounds, 502 Pa. 358, 466 A.2d 991 (1983); Commonwealth v. Kaster, 300 Pa. Super. 174, 446 A.2d 286 (1982); Commonwealth v. Hutchinson, 290 Pa. Super. 254, 434 A.2d 740 (1981); Commonwealth v. Clark, 280 Pa. Super. 1, 421 A.2d 374 (1980), aff'd. per curiam, 501 Pa. 393, 461 A.2d 794 (1983); Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealth v. Woods, 275 Pa. Super. 392, 418 A.2d 1346 (1980); Commonwealth v. Washington, 274 Pa. Super. 560, 418 A.2d 548 (1980); Commonwealth v. Dombrauskas, 274 Pa. Super. 452, 418 A.2d 493 (1980); Commonwealthv. Stafford, 272 Pa. Super. 505, 416 A.2d 570 (1979); Commonwealth v. Herman, 271 Pa. Super. 145, 412 A.2d 617 (1979); Commonwealth v. Epps, 270 Pa. Super. 295, 411 A.2d 534 (1979); Commonwealth v. Henson, 269 Pa. Super. 314, 409 A.2d 906 (1979); Commonwealth v. Cooke, 267 Pa. Super. 34, 405 A.2d 1290 (1979).
See Vol. IV, 4/7-9/94 at 1151 (Defendant agreed with another that either would engage in conduct constituting a crime or an attempt or solicitation to commit those crimes, and defendant did so with the intent of promoting or facilitating the commission of those crimes); at 1182 (In response to a second question, the jury was informed: "the Commonwealth must prove beyond a reasonable doubt that the Defendant knew he was receiving a controlled substance."). To read the preceding instructions as not informing the jury that "knowledge" was an element of the offenses would do violence to the tenet that jury charges are to be read as a whole to determine if they instruct the jury on the law, and the court may use its own language provided it adequately, accurately and clearly expresses the precepts of law. Commonwealth v. Jones, 449 Pa. Super. 58, 672 A.2d 1353, 1358 (1996); Commonwealth v. Balog, 448 Pa. Super. 480, 672 A.2d 319, 323 (1996); Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486, 490 (1980). Consistent with such remarks, we find the commission of no error by the trial court in failing to quote Lurie verbatim.
A court is free to use its own form of expression in charging the jury as long as it adequately, accurately and clearly explains the principle of law. Commonwealth v. Whitner, 278 Pa. Super. 175, 182, 420 A.2d 486, 490 (1980). In order for a party to be entitled to a new trial, the jury instruction must be fundamentally in error, or have misled or confused the jury.
With respect to pretrial motions, our Court has followed the Jones case in finding that when the motion has been expressly reserved for the time of trial and the "guilt determining process" directly follows a decision on the motion, trial has commenced for purposes of Rule 1100. See, Commonwealth v. Bell, 328 Pa. Super. 35, 476 A.2d 439 (1984); Commonwealth v. Derrick, 322 Pa. Super. 517, 469 A.2d 1111 (1983); Commonwealth v. Machi, 294 Pa. Super. 338, 439 A.2d 1230 (1982) (first requirement met where court had ordered motion to be heard "on the date of trial, immediately prior to trial"); Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980). We have reviewed the transcript of the hearing on the suppression motion in the instant case and have found that immediately prior to proceeding on the Motion to Suppress, individuals who were going to testify at trial were asked by the court to stand and be sworn in.
(one day between hearing and jury selection); Commonwealthv. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980) (jury selection immediately after suppression hearing); Commonwealth v. Wharton, 250 Pa. Super. 25, 378 A.2d 434 (1977) (one day between hearing and jury selection); Commonwealth v. Fisher, 244 Pa. Super. 361, 368 A.2d 762 (1976) (trial began two days after completion of suppression hearing) (all concluding that trial commenced on date of suppression hearing). Similarly, in Commonwealth v.Bell, 328 Pa. Super. 35, 476 A.2d 439 (1984), the court considered whether a pre-trial hearing on defendant's motion for change of venue constituted commencement of trial.
Rule 1100 is tolled in a variety of instances where the defendant's actions, or the actions of his attorney, contribute to delay in commencing trial, even in the absence of willfulness. See Commonwealth v. Jackson, 262 Pa. Super. 151, 396 A.2d 690 (1978) (the appellant's attorney's thirty-nine day vacation was excluded from the 180 day period); Commonwealth v.Bearish, 321 Pa. Super. 541, 468 A.2d 1121 (1983) (appellant's vacation time excluded); Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980) and Commonwealth v. Haynes, 245 Pa. Super. 17, 369 A.2d 271 (1976) (delay caused by appellant's hospitalization is excluded). This line of cases includes among those instances giving rise to excludable time occurrences which are not "willful" derelictions of a duty.
See: Commonwealth v. Caden, 326 Pa. Super. 192, 201, 473 A.2d 1047, 1051 (1984) (defendants who are hospitalized when seriously ill are deemed unavailable for Rule 1100 purposes). Accord: Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealth v. Quinlan, 259 Pa. Super. 536, 393 A.2d 955 (1978). When the period of 197 days is excluded from the period preceding appellant's trial on November 17, 1981, it is quite clear that appellant's trial was held within the time constraints of Rule 6013.
Defendants who are hospitalized when seriously ill are deemed unavailable for purposes of Rule 1100(d). Commonwealth v.Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealthv. Haynes, 245 Pa. Super. 17, 369 A.2d 271 (1976).
We have held in the past that defendants who are hospitalized when seriously ill are deemed unavailable for purposes of Rule 1100(d)(1). Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealth v. Quinlan, 259 Pa. Super. 536, 393 A.2d 955 (1978); Commonwealth v. Haynes, 245 Pa. Super. 17, 369 A.2d 271 (1976). When a defendant's condition renders him "physically or mentally incompetent," criminal proceedings against him must be continued to such time as he is able to participate therein.
The trial commenced with a suppression hearing reserved until the time of trial on May 12, 1975. Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980). Hence, 184 days elapsed from the time of the filing of the complaint until the commencement of trial.