No. 37 March Term, 1977, Appeal from Order of August 13, 1976, and entered on August 16, 1976, of the Court of Common Pleas, Criminal, of Indiana County, at No. 272 Criminal 1976.
Clyde R. Bomgardner, Sp. Asst. Atty. Gen., Mifflintown, for appellant.
Larry F. Knepp, Lewistown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., did not participate in the decision of this case. Roberts, J., files an opinion in support of affirmance in which Eagen, C. J., and Manderino, J., join. O'Brien files an opinion in support of reversal in which Pomeroy, J., joins. Nix, J., concurs in the result reached by O'Brien, J., in the opinion in support of reversal.
The Court being equally divided the order of the Court of Common Pleas of Indiana County remains in effect.
Appellee, David Lee Hassinger is therefore discharged.
Opinion IN SUPPORT OF AFFIRMANCE
The trial court, after extensive oral argument, correctly concluded that appellee had waived neither his right to have his claim considered nor his right to a speedy trial under Pa.R.Crim.P. 1100. Accordingly, we disagree with the Opinion in Support of Reversal that appellee has waived his right to have the "voluntariness" of his consent considered and would affirm the trial court on the merits.
On April 8, 1976, appellee filed an application for removal of the prosecuting attorneys assigned to his case. On April 12 and 14, 1976, hearings were held on the sole question of whether the prosecuting attorneys should be removed. During these hearings, no mention of any possible speedy trial problems was made. At 9:57 a. m., April 15, 1976, the court entered an order disposing of appellee's application. Sometime thereafter, appellee's counsel was advised by telephone that an order had been entered and that he should pick it up. At that time, appellee was incarcerated approximately fifteen miles from counsel's office. The order held that the prosecuting attorneys should be disqualified from further
service in the case, but conditioned granting such relief upon the signing by appellee and his counsel of a document stating:
"Now, April 15, 1976, Defendant and his counsel consent to extension of time for commencement of trial to and including September 13, 1976, agree not to move to dismiss above case by reason of delay of commencement of trial until said date and waive right ...