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COMMONWEALTH PENNSYLVANIA v. RICHARD S. WALLEY (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD S. WALLEY, APPELLANT



No. 6 October Term, 1977, Appeal from the Judgment of Sentence imposed on August 5, 1976, by the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. 801-804, June Term, 1975.

COUNSEL

Arthur L. Gutkin, Philadelphia, for appellant.

Michael R. Stiles, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

Author: Price

[ 262 Pa. Super. Page 500]

Following a jury trial commenced on January 5, 1976, appellant was convicted of robbery,*fn1 criminal conspiracy,*fn2 and two counts of aggravated assault.*fn3 Post-verdict motions were denied, and appellant was sentenced to ten to twenty years imprisonment for robbery, concurrent terms of five to ten years imprisonment for each aggravated assault, and a consecutive term of ten years probation for conspiracy. Appellant now makes various claims of error. Finding none of these meritorious, we affirm.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977), the pertinent facts are as follows. On the night of May 9, 1975, appellant and Vernon Chew entered the West Pom-Pom Bar on 5214 Girard Avenue, Philadelphia. At gunpoint, appellant ordered the bar's patrons into the bathroom. As the customers retreated, appellant pistol-whipped one patron and shot and wounded the bartender. The latter was then forced to surrender all money both on his person and in the cash register to appellant. Later that night, appellant and his accomplice were apprehended by police in a parked motor vehicle, taken to Misericordia Hospital, and there identified by the bartender as the robbers.

[ 262 Pa. Super. Page 501]

During the period immediately following the arrest, and through the suppression hearing, appellant was represented by a public defender from the Defender Association. At counsel's request, several continuances were granted which extended the date of trial commencement beyond the 180 day limit mandated by Pa.R.Crim.P. 1100*fn4 for the start of trial. Present counsel began his representation subsequent to the suppression hearing but prior to trial. Present counsel also requested, and was granted, a continuance.

Appellant first contends that the court below erred in denying his request to dismiss the case pursuant to Pa.R.Crim.P. 1100.*fn5 We do not reach the merits of such a claim because it has not been properly preserved for appellate review. Rule 1100(f) delineates the procedure for entering an objection based on a violation of the 180 day provision of Rule 1100:

"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. A copy of such application shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant." Pa.R.Crim.P. 1100(f).

We have repeatedly made clear that the right to dismissal pursuant to a Rule 1100 violation is waived by failure to file a written petition to dismiss prior to the commencement of trial.*fn6 Commonwealth v. Yancey, 251 Pa. Super. 478, 380

[ 262 Pa. Super. Page 502]

A.2d 880 (1977); Commonwealth v. Blanchard, 251 Pa. Super. 424, 380 A.2d 853 (1977); Commonwealth v. Matt, 248 Pa. Super. 538, 375 A.2d 371 (1977). Appellant not having done so, we cannot now review the issue on the merits.

In conjunction with this claim, appellant apparently contends that prior counsel could not validly obtain continuances and waivers of Rule 1100 rights absent appellant's knowing consent noted on the record. This claim is patently frivolous. We have held inferentially that counsel may request continuances that postpone trial commencement beyond the 180 day limit without the specific signed consent of his client. See, e. g., Commonwealth v. Hickson, 235 Pa. Super. 496, 344 A.2d 617 (1975) (valid continuance when counsel stated "any day is fine with me, Your Honor"). See also Pa.R.Crim.P. 1100(d)(2): "In determining the period for commencement of trial, there shall be excluded therefrom . . . (2) any continuance in excess of thirty (30) days granted at the request of defendant or his attorney, . . ." (emphasis added). Continuances are a matter of sound trial strategy ...


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