No. 80-3-392, Appeal from the Order of the Superior Court at No. 222 October Term, 1976, dated September 14, 1979, Reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Nos. 1230, 1233, 1236 and 1237 November Session, 1974.
Eric B. Henson, Deputy Dist. Atty., for appellant.
John W. Packel, Chief, Appeals Div., Leonard Sosnov, Asst. Public Defender, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., concurs in the result.
The Commonwealth appeals, by allowance, from an order of the Superior Court, 269 Pa. Super. 398, 410 A.2d 316, directing the discharge of appellee, David Robinson, on the ground that the Commonwealth failed to comply with this Court's prompt trial rule, Pa.R.Crim.Proc. 1100. We conclude that the Superior Court erred.
Police filed written criminal complaints against appellee on October 26, 1974. Indictments were returned on November 20, 1974.
On December 24, 1974, the matter was set for trial by jury in the Court of Common Pleas of Philadelphia. However, the unavailability of a courtroom required a continuance, to February 3, 1975. Two more continuances followed, both of which were entered because of the unavailability of a courtroom. The second of the latter two continuances, entered on March 13, 1975, postponed the matter until April 15, 1975, the 171st day after the filing of the written complaints.
Docket entries indicate that on April 15 the matter was again continued, to May 19, 1975. This continuance was granted at the request of the defense. Accompanying the entry of this continuance is a notation which states "Rule 1100 waived."
A notation on one of the indictments against appellee states: "Def't waives Rule 1100 -- for additional 30 days (to 5/23/75)." Following this notation are the signatures of appellee and his counsel. It would appear that the "waiver" referred to took place on April 23, the thirtieth day ...