No. 477 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, as of Nos. 2408-2411, November Session, 1975.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 248]
The instant appeal arises from appellant's conviction, following a jury trial, of robbery, criminal conspiracy and assault. Appellant, who has an extensive record of prior offenses and convictions, received a two to five year sentence for robbery, and a consecutive five year period of probation. Sentence on the assault charge was suspended. Appellant raises two points for our consideration: whether the trial court erred in refusing to dismiss his indictment because he was not tried within 180 days of his arrest; and, whether appellant was denied the effective assistance of counsel at his trial. Finding no merit in either of these contentions, we will affirm.
On the night of November 5, 1975 appellant and two accomplices assaulted Rudolph Harley while he was waiting for a taxicab in the Germantown section of Philadelphia. Beating Mr. Harley and choking him with a rope, appellant and his cohorts rendered their victim unconscious on the street and robbed him of cash, a money order, his wallet and identification. The latter part of the attack was witnessed by a patrolling policeman who pursued the culprits and captured appellant crouched down in a nearby automobile. The car also contained Mr. Harley's wallet, identification and money. Although Mr. Harley could not identify appellant, he identified his co-defendant, Donald Poles. Both
[ 258 Pa. Super. Page 249]
were scheduled to be tried together; but, on April 28, 1976, Poles entered a guilty plea.
Appellant's Rule 1100 claim rests on the fact that he was not tried until May 24, 1976, obviously more than 180 calendar days from the date of his arrest. Penultimately, the case had been scheduled for trial on April 29, 1976; but, on appellant's motion, trial was continued until May 24, 1976.*fn1 When the court announced this new trial date in granting appellant's request for a continuance, appellant offered no objection that his right to a speedy trial as delineated by Pa.R.Crim.P., Rule 1100 would be denied him. Instead, he waited until the new trial date arrived to raise this objection.*fn2
We find that Commonwealth v. Hickson, 235 Pa. Super. 496, 344 A.2d 617 (1975) controls our decision in this case. In Hickson we held that the defendant may not challenge the Commonwealth's failure to comply with Rule 1100 when he consents to scheduling a trial date beyond the applicable period of time set forth in the rule. Indeed, the instant case presents a stronger basis for finding a waiver, since defense counsel did not merely agree with the Commonwealth to a trial date beyond 180 days as counsel did in Hickson, he unilaterally requested it. When counsel requested a continuance five days before the 180-day period would run and
[ 258 Pa. Super. Page 250]
mutely accepted May 24, 1976 as the rescheduled date for trial, he waived any Rule 1100 violation which would otherwise have been occasioned by the delay. See Commonwealth v. Coleman, 241 Pa. Super. 450, 454-55 n. 1, 361 A.2d 870 (1976); ...