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COMMONWEALTH PENNSYLVANIA v. BONNIE IRVINE TAMI AND TERRY TAMI (03/28/79)

decided: March 28, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
BONNIE IRVINE TAMI AND TERRY TAMI, APPELLANTS



No. 95 and 96 April Term 1978, No. 97 and 98 April Term 1978, Appeal from the Judgment of Sentence imposed on August 12, 1977, in the Court of Common Pleas of Warren County, Pennsylvania, Criminal Division at Nos. 553, 557, 555 and 556 of 1976.

COUNSEL

Alan Ellis, State College, and Paul D. Boas, of Berlin, Boas, Isaacson, Logan, Rosenfield & Sharon, Pittsburgh, for appellants.

Samuel F. Bonavita, District Attorney, Warren County, for appellee.

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

Author: Per Curiam

[ 264 Pa. Super. Page 537]

Appellants, husband and wife, were found guilty by Honorable Robert J. Wolfe, President Judge, in a non-jury trial for violating the Drug, Device and Cosmetic Act of 1972*fn1 by delivering a controlled substance. Post verdict motions having been filed and denied, sentence was imposed and these appeals followed.

Initially, appellants contend the charges against them should be dismissed under Pa.R.Crim.P. 1100 because they were denied a speedy trial. The procedural history of the case is as follows. The complaints against appellants were filed August 25, 1976, which made the original run date under Rule 1100, February 21, 1977. They waived arraignment, but filed motions to dismiss the complaints on constitutional grounds. Arguments on these motions were scheduled for February 1, 1977. However, the cases were listed for a non-jury trial on January 28th. On January 21st, counsel for the appellants, Alan Ellis, Esq., in a letter addressed to Judge Wolfe, requested a postponement of the trial date, and that the hearing or argument on the motion to dismiss be rescheduled so that it could be heard "immediately prior to the non-jury trial"; and agreed to waive the provisions of Rule 1100. He also requested a rescheduling of the cases to a date after March 8th when he would have returned from his vacation. He also stated the Commonwealth had agreed. On January 28th, the Commonwealth petitioned the court for an extension of the permissible time for trial under Rule 1100(c) because of appellants' pending petition to dismiss which was to be argued on February 1, 1977. No hearing was held on the Commonwealth's petition, and it was granted ex parte on the day it was filed. An extension of 64 days from the original run date was granted making April 26, 1977 the last permissible date for trial. The trial commenced on March 21, 1977.

In their original appellate brief filed by new counsel, Paul Boas, Esq., appellants allege they had no notice of the

[ 264 Pa. Super. Page 538]

Commonwealth's petition for the extension. However, the record indicates their counsel did have notice. As previously stated, appellants had sent a letter to Judge Wolfe requesting an extension, and also indicating that it had been agreed to by the District Attorney. The Commonwealth's petition merely carried out that agreement. Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977) indicates this was a waiver, if not an agreement, that the Commonwealth's petition be granted ex parte. See also Commonwealth v. Hickson, 235 Pa. Super. 496, 344 A.2d 617 (1975).

Appellants' argument that their counsel's waiver of Rule 1100 was improper is clearly without merit as demonstrated by the record. No hearing is necessary to show that he had the best interest of his clients in mind when he sought or agreed to a continuance so that his motion to dismiss could be argued before trial and at a time he would be available. Commonwealth v. Laudenslager, 259 Pa. Super. 118, 393 A.2d 745 (1978) presented a similar situation.

We conclude that the lower court did not err in dismissing appellants' petition under Rule 1100.

We next proceed to a consideration of appellants' argument that their waiver of a jury trial was not knowingly and intelligently made. This argument is based on the requirements of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), one of which is that the person, in waiving his or her right to a jury trial, must be informed that the jury would be chosen from members of the community and that he or she would be allowed to participate in the selection of the jury. Appellants do not question any ...


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