Nino V. Tinari, Stephen P. Patrizio, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Eric B. Henson, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Jones, former C. J., and Pomeroy, J., did not participate in the consideration or decision of this case. Nix, J., filed a concurring opinion in which Eagen, C. J., joined.
Appellant was convicted by a jury of murder in the second degree, criminal conspiracy, carrying a firearm on a public street, possession of an instrument of crime, and various other weapons charges. Post-verdict motions were denied and this appeal followed.
Appellant raises two issues. Neither, however, has been preserved for appellate review. Appellant first contends that the trial judge erred in that the charge to the jury misstated the law concerning the standard of proof required in a criminal case. This issue has been waived because there was no objection made by the appellant to the charge during the trial. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Rule 1119(b), Pa.R.Cr.P.
Appellant next contends that he was not tried within the applicable time limit mandated by Rule 1100 of the Pennsylvania Rules of Criminal Procedure and therefore he was denied his right to a speedy trial and is entitled to a discharge. This issue has also been waived because it was not raised prior to trial.
"At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated. A copy of such application shall be served upon the attorney for the Commonwealth, who shall also have
the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant."
Although appellant objected in the trial court to the prosecution's timely request for a continuance beyond the 270 day period applicable in this case, appellant did not then, or at any time prior to trial, move for a dismissal of the charges against him. Appellant failed to comply with Rule 1100(f). Under these circumstances, the issue now raised by the appellant has been waived and cannot be raised in this appeal. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Cases in which this Court has dismissed criminal charges because of a violation of the time requirements of Rule 1100 are cases in which the defendant complied with Rule 1100(f) by moving for a dismissal of the charges in the trial court prior to trial. See Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); ...