No. 1300 October Term, 1977, Appeal from the Judgment of Sentence imposed on March 23, 1977, by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 1602-1605, May Session, 1974.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Following a jury trial commenced on October 28, 1976, appellant was convicted of robbery,*fn1 criminal conspiracy,*fn2 possession of instruments of crime generally,*fn3 possession of instruments of crime -- weapon,*fn4 possession of prohibited offensive weapons,*fn5 and aggravated assault.*fn6 Sentence was deferred pending pre-sentence reports and psychiatric examination. Post-trial motions for new trial and for arrest of judgment were denied, and sentence was subsequently imposed.
On appeal, appellant contends that the Commonwealth violated his rights to a speedy trial under Pa.R.Crim.P. 1100(a)(1)*fn7 and under Article IV(c)*fn8 of the Interstate
[ 262 Pa. Super. Page 214]
Agreement on Detainers.*fn9 We find both issues waived, and thus affirm the judgment of sentence.
The facts important to our consideration of the issues are as follows. On April 20, 1974, appellant was arrested, and a complaint was filed charging him with simple assault*fn10 plus the offenses mentioned above. The charges stemmed from the April 19, 1974 robbery and shooting of a Philadelphia physician, Dr. Ross Noll. Appellant was arraigned on June 11, 1974, and a pre-trial conference was scheduled for July 9, 1974. Appellant failed to appear at the pre-trial conference, and a bench warrant was issued. Sixty-nine days later, on September 16, 1974, the Commonwealth located appellant in a New York prison, and on that date, the Commonwealth was directed to prepare a writ to secure his presence in Philadelphia. At court listings in September, October, and November, 1974, appellant was still listed as incarcerated in New York. On December 31, 1974, defendant was located in a Montgomery County prison in Pennsylvania. Appellant requested, and was granted, a six day continuance on January 7, 1975.
On January 8, two hundred fifty-five (255) days*fn11 after his initial arrest on April 20, 1974, appellant executed a waiver of his Rule 1100 rights, and was released on his own recognizance. In executing this waiver, appellant signed the indictment, and appellant's counsel conducted a lengthy colloquy before the lower court. The case was continued to February 13, 1975, and on that day, appellant did not appear in court. The next day, February 14, 1975, another bench warrant was issued, and the Commonwealth was unable to locate appellant until May 22, 1975, when it learned of his imprisonment in New York. A detainer warrant was lodged against him at that time. While in custody in New York
[ 262 Pa. Super. Page 215]
appellant was tried and convicted of charges outstanding there, and was sentenced on November 25, 1975. In the interim, on October 27, 1975, he signed the Detainer Agreement which notified him of the ...