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COMMONWEALTH PENNSYLVANIA v. ROBERT BAINES (07/14/78)

decided: July 14, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT BAINES, APPELLANT (TWO CASES)



Nos. 217 and 346 January Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section Imposed on Indictments Nos. 1119-23, July Sessions, 1971

COUNSEL

Cohen & Fitzpatrick, William A. Fitzpatrick, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Eric Henson, Asst. Dist. Attys., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion in which Nix, J., joins.

Author: Pomeroy

[ 480 Pa. Page 28]

OPINION OF THE COURT

Appellant Robert Baines was convicted following a jury trial of murder in the first degree and several lesser offenses in connection with the shooting death of Edward Perry in Philadelphia on January 4, 1971.*fn1 Post-verdict motions were filed and denied, and this direct appeal ensued.*fn2 Baines' principal contentions*fn3 are that he was denied

[ 480 Pa. Page 29]

    his right to a speedy trial and that he was improperly denied the assistance of counsel of his choice. Because we conclude that the first issue has been waived and that the second is without merit, we affirm the judgment of sentence.

I.

The parties agree that the speedy trial claim in this case is governed by the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and not by Pa.R.Crim.P. 1100, since this prosecution was begun before June 30, 1973, the effective date of that Rule.*fn4 We do not reach the merits of this claim, however, because it was not raised in a timely fashion in the court below.

Like any other claim, a speedy trial claim may be waived if not properly and timely asserted in the lower court. E. g., Commonwealth v. Roundtree, 458 Pa. 351, 354, 326 A.2d 285 (1974). In Pennsylvania, a motion to quash the indictment or a similar pre-trial application for ...


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