decided: July 8, 1977.
COMMONWEALTH OF PENNSYLVANIA
JAMES TAYLOR, APPELLANT
John J. Dean, John R. Cook, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Louis R. Paulick, Asst. Dist. Attys., Charles W. Johns, 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.
[ 473 Pa. Page 401]
OPINION OF THE COURT
Appellant was convicted in a jury trial of murder in the first degree. Post-verdict motions were denied, and the trial court imposed a sentence of life imprisonment. In this appeal from judgment of sentence, Taylor principally assigns as error an order of the lower court granting the Commonwealth's application to extend commencement of trial beyond the 180 day period mandated by Rule 1100 of the Pennsylvania Rules of Criminal
[ 473 Pa. Page 402]
Procedure.*fn1 For the reasons set forth below, we conclude that appellant has waived his right to object to the order; we therefore affirm.*fn2
The complaint charging Taylor with murder was filed on February 14, 1975. By the terms of Rule 1100(a)(2), therefore, Taylor was entitled to be brought to trial no later than August, 13, 1975. On July 25, 1975, however, the attorney for the Commonwealth petitioned the trial court for an order extending the time within which trial could be commenced.*fn3 The petition and a proposed order of court were served on defense counsel at about two o'clock on the preceding afternoon, July 24, together with a written notice that the matter would be brought on for hearing at 9:30 o'clock the following morning. When the attorney for the defendant did not appear for the hearing on July 25, the Commonwealth proceeded ex parte. At the conclusion of the district attorney's presentation
[ 473 Pa. Page 403]
the hearing judge entered an order extending the time for trial to not later than October 20, 1975.*fn4
On September 29, 1975, Taylor filed a motion to dismiss charges against him on Rule 1100 grounds; after argument, the motion was denied.*fn5 Trial began on October 14, 1975, and a verdict of guilty of murder in the first degree was returned on October 16, 1975. The judgment of life imprisonment followed.
Appellant now urges that the trial court erred in granting the Commonwealth's application to extend the time for commencement of trial since the grounds advanced in the application do not sustain a finding that trial could not have been "commenced within the prescribed period despite due diligence by the Commonwealth". Pa.R.Crim.P. 1100(c), supra. See Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).*fn6 We do not reach the merits of this argument,
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however, for we find that appellant had forgone his right to contest the extension order.
A defendant who is represented by legal counsel cannot be heard to complain of a Rule 1100(c) extension order where his lawyer has had adequate notice*fn7 of the Commonwealth's timely filed application, see, e. g., Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975), and of the intended presentation thereof to the court and does not appear at the time and place of hearing or otherwise communicate with the trial court either to oppose the extension or to request a reasonable continuance of the hearing for good cause shown.*fn8 It matters not whether the failure of the defense to oppose the Commonwealth's application is because of agreement that the averments in the application entitle the Commonwealth
[ 473 Pa. Page 405]
to the requested extension of time, or whether the defendant for reasons of his own, is willing to acquiesce in the extension. Whatever the reason for the course of conduct, such a defendant must be deemed to have consented to the extension.*fn9 See generally, Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Dever, 243 Pa. Super. 87, 364 A.2d 463 (1976); Commonwealth v. Hickson, 235 Pa. Super. 496, 344 A.2d 617 (1975). As was observed by Judge Zeigler, writing for the trial court in disposing of post-verdict motions, "a defendant, who is represented by counsel, cannot intentionally avoid the orderly procedure of the court, and then assail its impact." (Opinion of the Court at 6.)
Judgment of sentence affirmed.