John J. Dean, Lester G. Nauhaus, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Louis R. Paulick, Asst. Dist. Atty., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Nix, J., did not participate in the consideration or decision of this case. Eagen, C. J., filed a concurring opinion in which Roberts, J., joins.
Following a jury trial, appellant Donald Lamonna was found guilty of murder in the second degree, kidnapping, and two separate firearms offenses. Post-trial motions were denied, and a sentence of life imprisonment was imposed with respect to the murder charge.*fn* In this appeal, appellant's sole contention is that judgments of sentence should be reversed and charges against him dismissed because of the Commonwealth's non-compliance with our rule requiring prompt trial, Pa.R.Crim.P. 1100. For the reasons stated hereinafter, we agree.
On September 1, 1974, a criminal complaint was filed against appellant charging him with offenses arising from the abduction and slaying of one Michael Nelson alleged to have occurred on the previous night. Trial for appellant and five similarly charged co-defendants was listed for January 27, 1975, a time well before the expiration date of the 180 day period within which trial must be commenced. Pa.R.Crim.P. 1100(a)(2).*fn1 Two weeks before the scheduled trial date, on January 15, 1975, the lower court granted a motion made by appellant to sever his trial from that of his co-defendants.*fn2 One month
thereafter, on February 19, 1975, the court on its own motion ordered an extension of the date for commencement of Lamonna's trial to March 10, 1975. On that date -- 190 days after the filing of the complaint -- appellant filed an application to dismiss the charges against him pursuant to section (f) of Rule 1100.*fn3 Following a hearing thereon, the application was denied, and trial then proceeded, with the result stated above.
Because the commencement of the trial in this case occurred 10 days beyond the time required by Rule 1100(a)(2), that period of delay must be either excluded from computation of the 180 days under section (d) of Rule 1100*fn4 or be justified by an order granting an application by the Commonwealth for an extension of time pursuant to section (c).*fn5 See, e. g., Commonwealth v. Page 254} Shelton, 469 Pa. 8, 15, 364 A.2d 694, 697 (1976). Since, however, the only application by the Commonwealth was filed after the mandatory time for trial had expired, an argument addressed to justifiable excuse for extension of trial date is not now available to the Commonwealth.*fn6 Shelton, supra at 15, 364 A.2d at 697; Commonwealth v. Woods, 461 Pa. 255, 257-258, 336 A.2d 273, 274 (1975). The focus of the Commonwealth's present argument is therefore directed to the automatic exclusions provided by section (d).*fn7 Advanced as a threshold argument, however, is the contention that appellant has waived his right to a Rule 1100 discharge by failing to make timely objection to violation of the rule.
We agree that a defendant may waive or consent to a violation of Rule 1100 by his failure to raise the issue. Inasmuch as one may waive the speedy trial right guaranteed by the federal and state constitutions by failure to assert a timely objection, Commonwealth v. Roundtree, 458 Pa. 351, 326 A.2d 285 (1974), a fortiori, a defendant's neglect may preclude reliance on a rule of procedure adopted in aid of that constitutional right. Hence section (f) of Rule 1100 limits ...