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decided: March 31, 1977.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County on Nos. 917, 918, May Sessions, 1975. No. 1711 October Term, 1976.


Herman Winderman, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, with her F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Hoffman

[ 246 Pa. Super. Page 499]

Once again, this Court must address an issue arising under Rule 1100, Pa.R.Crim.P., 19 P.S. Appendix: whether an accused may challenge the grant of an extension pursuant to Rule 1100(c) in post-trial motions and on appeal if he does not contest the grant of the extension during the hearing on that motion. We hold that the claimed violation was waived and, therefore, affirm the judgment of sentence.

A criminal complaint charging appellant with aggravated assault and related offenses was filed on March 28, 1975.*fn1 Therefore, unless the period was extended by operation

[ 246 Pa. Super. Page 500]

    of Rule 1100(d), see Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Commonwealth had until September 24, 1975, to bring appellant to trial. Rule 1100(a)(2). On May 7, 1975, appellant filed a motion to quash the return of the magistrate's transcript. At appellant's request, the lower court stayed all proceedings pending disposition of the motion. After further proceedings, the appellant withdrew the motion to quash on June 18, 1975, when the Commonwealth agreed to provide the appellant with a copy of the police report of the incident. On September 25, 1975, 181 days after the complaint was filed, the Commonwealth filed a petition to extend the time for commencement of trial pursuant to Rule 1100(c). The Commonwealth alleged three bases for the extension: (1) the preliminary hearing was originally delayed for one month because the Commonwealth's witness was still confined to the Wills Eye Hospital; (2) as noted above, proceedings were stayed for 41 days at appellant's request; and (3) courtroom facilities were unavailable to try appellant within the period. The court extended the period for 60 days because appellant's trial was listed as a "back-up" case to several others before the judge assigned to hear it. In fact, trial commenced on October 2, 188 days after the issuance of

[ 246 Pa. Super. Page 501]

    the complaint. During the Rule 1100(c) hearing, appellant's counsel offered no argument in opposition to the motion. Counsel also failed to file a petition to dismiss in compliance with Rule 1100(f). Appellant was found guilty as charged and was sentenced to 5 to 10 years' imprisonment on the bill charging aggravated assault*fn2 and to a consecutive one to two years' term of imprisonment on the bill charging appellant with recklessly endangering another person.*fn3 This appeal followed.

The sole issue before this Court is whether the Commonwealth violated Rule 1100. We note first that the Commonwealth did not petition the court for an extension until 181 days had elapsed. This Court and our Supreme Court have held repeatedly that the Commonwealth must file its petition to extend in a timely manner. Commonwealth v. Shelton, supra; Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975); Commonwealth v. Harris, 243 Pa. Super. 503, 366 A.2d 267 (1976); Commonwealth v. Cutillo, 235 Pa. Super. 131, 339 A.2d 123 (1975). To determine whether the application is timely the court must first decide whether the period has been extended automatically by operation of Rule 1100(d). See Commonwealth v. Shelton, supra; Commonwealth v. O'Shea, supra. Aware of this problem, the Commonwealth argued in its application for an extension that 41 days should have been excluded from the period by operation of Rule 1100(d) because the lower court stayed the proceedings from May 7, until June 18. Appellant did not challenge that basis for extension or the timeliness of the petition, either before the lower court during the Rule 1100(c) hearing or in a pre-trial application pursuant to Rule 1100(f).*fn4

[ 246 Pa. Super. Page 502]

Rule 1100(c) provides, in relevant part: "At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon." (Emphasis added). Because 180 days had expired, the Commonwealth had the burden of showing that its petition was timely. It sought to do so by showing that appellant was responsible for a 41 day delay. Once the Commonwealth had introduced evidence on that issue, it was incumbent on the appellant to challenge the grounds alleged.*fn5 In fact, appellant raised no objection to the Commonwealth's evidence supporting its alleged exercise of due diligence or the exclusion of 41 days from the period. We find that the failure to object precludes our subsequent review of the lower court's finding. Cf. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (filed January 28, 1977); failure to raise claim of ineffective assistance of counsel at the earliest stage constitutes a waiver; Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (failure to raise specific objections to jury charge constitutes a waiver).

Judgment of sentence is affirmed.

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