No. 288 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Indictment Nos. 770 & 773, December Sessions, 1974.
John W. Packel, Assistant Public Defender, Philadelphia, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Philadelphia, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., concurs in the result.
[ 251 Pa. Super. Page 425]
Following a non-jury trial, appellant, Clarence Blanchard, was found guilty of robbery and possessing an instrument of a crime. The question raised on appeal is whether appellant's claim that he was denied a speedy trial under Pa.R.Crim.P., Rule 1100 has been properly preserved for our review. We hold that it has not.
The complaint was filed against appellant on November 12, 1974, so the Commonwealth had 180 days to bring appellant to trial. Pa.R.Crim.P. 1100(a)(2). Although trial commenced on August 25, 1975, appellant admits and the record indicates that defense counsel did not raise the Rule 1100 question until August 26, 1975, subsequent to the
[ 251 Pa. Super. Page 426]
commencement of trial.*fn1 The lower court then granted appellant leave to petition nunc pro tunc for dismissal on Rule 1100 grounds.
Pa.R.Crim.P. 1100(f) provides, in pertinent part, that: "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."
In Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977), our Supreme Court recently noted:
"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 the time within which a defendant may apply for an order dismissing charges to 'any time before trial.'"
Therefore, the language of Rule 1100 as interpreted by our Supreme Court is clear that in order for a Rule 1100(f) petition to be timely, it must be filed before trial. Since it is undisputed that trial had commenced in the case at bar before the Rule 1100 issue was raised, our issue narrows to whether the lower court may grant a defendant leave to petition nunc pro tunc for dismissal on Rule 1100 grounds. We conclude that without a finding of ineffective ...