decided: September 22, 1975.
Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1973, No. 802, in case of Commonwealth of Pennsylvania v. James Hickson.
Douglas Riblet and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.
Hugh J. Colihan, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 235 Pa. Super. Page 497]
This case presents the issue*fn1 of whether appellant must be discharged where his new trial was held in violation
[ 235 Pa. Super. Page 498]
of the time requirements of Pa.R.Crim.P. 1100(e).*fn2 Because we find that appellant consented to the scheduling of the new trial for a date beyond the ninety-day period, we conclude that appellant may not now object and affirm the decision of the court below.
On December 6, 1973, appellant was found guilty of aggravated robbery by the lower court sitting without a jury. The court subsequently in post-verdict motions awarded appellant a new trial on February 15, 1974. Due to several postponements and continuances, the new trial was not commenced until June 27, 1974, some one hundred thirty-two days after it had been ordered.
Appellant admits that the delay from March 12 to May 10 was occasioned by applications of his counsel for continuances. However, of the fifty-eight days of delay, appellant argues that only those days in excess of thirty are attributable to him under Pa.R.Crim.P. 1100(d)(2).*fn3 If this argument is accepted, it appears that appellant
[ 235 Pa. Super. Page 499]
would then be responsible for only twenty-eight days of delay. After subtracting these days from the one hundred thirty-two days that elapsed before the new trial was conducted, it becomes clear that the new trial was still in violation of the ninety-day requirement of Pa.R.Crim.P. 1100(e).
The record discloses, however, that on June 4, 1974, counsel for both parties met with the court and agreed to postpone the trial to June 19, 1974. When asked if June 19 would be a satisfactory trial date, defense counsel replied, "Any day is fine with me, Your Honor." Notes of Testimony on June 4, 1974, at 49. Even if we accept appellant's argument that he is not responsible for the first thirty days of delay occasioned by himself, we observe that the ninety-day period would have run on June 13, 1974. Because appellant agreed to a trial date on June 19 which was beyond the ninety-day period, he cannot now complain that Pa.R.Crim.P. 1100(e) was violated.
In Commonwealth v. Green, 232 Pa. Superior Ct. 134, 335 A.2d 493 (1975), we encountered a somewhat similar situation. There, defendant argued on appeal that he was placed in double jeopardy when after conviction of certain charges in the municipal court he was prosecuted further in the court of common pleas on remaining charges arising out of the same criminal episode. Our Court, however, held that by acquiescing to the separation of the charges, the defendant waived his right to object that he was subjected to multiple trials. Specifically, it was stated in Green :
"[B]y misleading the hearing judge and the Commonwealth with his silence, and by giving the appearance of consent to the arrangement, the appellee [defendant] has waived his right to claim harassment by multiple prosecutions." Id. at 145, 335 A.2d at 498.
In the present case, when asked by the court if defense objected to scheduling the trial on June 19, a day that was beyond the ninety-day period, defense counsel replied:
[ 235 Pa. Super. Page 500]
"Any day is fine with me, Your Honor." As in Green, appellant in this case gave the appearance of approval to the court's scheduling the trial beyond the time limits set forth in Pa.R.Crim.P. 1100(e). Accordingly, we hold that appellant may not now complain that Pa.R.Crim.P. 1100(e) was violated.*fn4