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COMMONWEALTH PENNSYLVANIA v. ROBERT COSTIGAN (12/07/79)

filed: December 7, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT COSTIGAN, APPELLANT



No. 18 October Term, 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, at Nos. 1108 and 1122, September Sessions, 1974.

COUNSEL

Roy Davis, Assistant Public Defender, Media, for appellant.

Ralph B. D'Iorio, Assistant District Attorney, Media, for appellee.

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

Author: Cercone

[ 272 Pa. Super. Page 523]

The instant appeal arises from the judgment of sentence the court imposed upon appellant for robbery.*fn1 Before us on appeal are two questions for our review: (1) whether the court below was correct in denying appellant relief under Pa.R.Crim.P. 1100; and (2) whether the suppression court correctly found the Commonwealth sustained its burden of proving a valid consensual search to support the police's seizure of a weapon located in the trunk of the auto in appellant's custody. Since we find no error in the proceedings in the court below, we affirm.

I.

Appellant first contends that he is entitled to discharge because his right to a speedy trial under Pa.R.Crim.P. 1100 was denied him. This argument has three facets which we shall treat separately.

The complaint charging appellant with robbery was filed on July 3, 1974; accordingly, the Commonwealth had until December 30, 1974 to bring appellant to trial.*fn2 However, on November 15, 1974 well within the 180 days permitted by the rule, the Commonwealth filed a petition for an extension of time of ninety days to bring appellant to trial pursuant to subsection (c) of Rule 1100.*fn3 The petition recited

[ 272 Pa. Super. Page 524]

    the lack of available courtroom and judicial manpower to try the case within 180 days. Neither appellant nor counsel on his behalf appeared at the hearing on the extension petition, and the Commonwealth's request was granted. In its order granting the extension the court recited as a fact that the Commonwealth "proved that the said application [for an extension of time] was served on defendant . . . ." On February 10, 1975, appellant's counsel filed an "Application to Suppress Evidence and to Quash Indictments," alleging, inter alia, that the prior listing of appellant's trial on January 6, 1975, was "in excess of his guaranty to a speedy trial."*fn4 Ultimately, appellant was tried in June, 1975, but it is conceded that the periods of delay occurring after January, 1975, are not attributable to the Commonwealth.

First, appellant contends that he should have been discharged pursuant to Rule 1100 because the Commonwealth's petition for an extension recited only the standard, boilerplate justifications for an extension which this court criticized in Commonwealth v. Ray, 240 Pa. Super. 33, 360 A.2d 925 (1976). It must be noted, of course, that the judge hearing the petition stated in his order granting it that he "considered ...


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