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COMMONWEALTH PENNSYLVANIA v. EDWARD FEREBEE (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD FEREBEE, APPELLANT



No. 2170 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bills of Indictment Numbers 875, 879 and 880, November, 1974.

COUNSEL

Lon M. Cobrin, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 259 Pa. Super. Page 236]

The instant appeal arises from appellant's conviction in Philadelphia Common Pleas Court on charges of robbery, conspiracy, simple and aggravated assault. Post-trial motions were argued and denied and sentence imposed. Appellant argues, inter alia, that his application to dismiss the charges against him under Pa.R.Crim.P. 1100 was improperly denied and that he should be discharged.*fn1 Because we find the record insufficient to rule upon appellant's contentions, we are ordering a remand for an evidentiary hearing.

The criminal complaint in this case was filed October 17, 1974. Hence, absent periods of time which might subsequently be omitted from the Rule (1100(d)) and absent extensions of time properly granted by the court (1100(c)), trial was to commence no later than April 15, 1975. Trial did not begin, however, until October 8, 1975. The Commonwealth filed a timely petition for an extension of time on March 27, 1975, and, following a hearing thereon, the lower court granted an extension to July 13, finding as the basis therefor various judicial delays and proceedings. Sometime

[ 259 Pa. Super. Page 237]

    in late July,*fn2 appellant filed a pro se application to dismiss the charges (1100(f)) and the Commonwealth filed an answer along with another request for an extension of time. At a hearing on September 25, 1975, Judge Greenburg denied appellant's application and set a new time limit for October 8, 1975. It is the validity of the two extensions granted the Commonwealth that appellant contests.

We find the first order, entered April 24, 1975, to be valid under the rule of Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). There, the Supreme Court held judicial delay and judicial proceedings could validly be used as reasons for extending the time for commencement of trial under Rule 1100(c). As examples, the court cited "judicial proceedings involving prosecution of the charges" and unavailability of the court because of "scheduling difficulties as instances where an extension order would be permissible." Shelton, supra, at 18, 364 A.2d at 699. Instantly, appellant's trial was continued twice for courtroom unavailability and once in late March, 1975, to litigate pre-trial motions filed by appellant. Under these circumstances, there was sufficient basis for Judge Greenburg to grant the Commonwealth's petition to extend.*fn3

Judge Greenburg's second order of extension, entered September 25, 1975, requires more detailed scrutiny. The record shows that on July 14, 1975,*fn4 both appellant and the Commonwealth requested a continuance in order to obtain

[ 259 Pa. Super. Page 238]

    notes from a prior suppression hearing. A new date was set for September 9, 1975. Appellant now contends that Rule 1100 was violated by the continuance since the first extension order expired July 14 and since the 180 days had long since run. Such a rationale, however, ignores our cases holding that defense acquiescence in a trial date beyond the time limit constitutes a waiver of Rule 1100. In Commonwealth v. Hickson, 235 Pa. Super. 496, 344 A.2d 617 (1975), the defense requested a continuance and agreed to a date far beyond the limit. We said there "(A)ppellant in this case gave the appearance of approval to the court's scheduling the trial beyond the time limits set forth in Pa.R.Crim.P. 1100(e). Accordingly, we hold that appellant may not now complain that Rule 1100(e) was violated." Id., 235 Pa. Super. at 500, 344 A.2d at 618. And in Commonwealth v. Coleman, 241 Pa. Super. 450, 361 A.2d 870, we noted, "It is clear that a defendant waives Rule ...


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