No. 134 Harrisburg 1981, APPEAL FROM THE PCHA ORDER OF APRIL 7, 1981 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, CRIMINAL NO. 458 C.A. 1978
Gary L. Snyder, York, for appellant.
Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
Wieand, Cirillo and Popovich, JJ.
[ 310 Pa. Super. Page 505]
This is an appeal from the denial of appellant's petition for relief under the Post Conviction Hearing Act (P.C.H.A.).*fn1
On November 21, 1978, appellant Ronald Lee Williams was found guilty of Rape*fn2 and Involuntary Deviate Sexual Intercourse*fn3 by the Honorable James E. Buckingham, sitting without a jury. Appellant's post-verdict motions were dismissed on December 27, 1978. New counsel having been appointed, appellant was sentenced on February 16, 1979 to not less than five (5) nor more than ten (10) years imprisonment on each charge, to run consecutively. Appellant's new counsel failed to file a timely appeal to this court and we refused to accept an appeal nunc pro tunc. On March 19, 1980, appellant filed a petition pursuant to the P.C.H.A.
[ 310 Pa. Super. Page 506]
and new counsel was again appointed. On June 26, 1980 a hearing on appellant's P.C.H.A. petition was held before Judge Buckingham. Appellant was permitted to file supplemental post-verdict motions. Appellant's supplemental post-verdict motions and P.C.H.A. petition were denied in all respects by Judge Buckingham on October 16, 1980 except that appellant was permitted to file an appeal nunc pro tunc with this court from the dismissal of his post-verdict motions. An appeal was filed with this court but quashed on December 23, 1980 because it was not timely filed. Appellant filed a second P.C.H.A. petition on March 23, 1981 alleging ineffective assistance of counsel in failing to file a timely appeal. On April 1, 1981, Judge Buckingham granted the relief requested under this second P.C.H.A. and new counsel was again appointed to effectuate an appeal from the October 16, 1980 order. This appeal followed.
Appellant raises several claims on appeal. Appellant first contends that he was denied his rights under Pa.R.Crim.P. 1100, 42 Pa.C.S.A. The criminal complaint against appellant was filed on April 5, 1978 and the Rule 1100 trial run-date was October 2, 1978. On September 18, 1978, prior to the expiration of the 180th day, the Commonwealth filed an application to extend the time for commencement of trial due to the unavailability of Dr. Lynn Jensen, the physician who examined the victim after the rape.*fn4 On October 2, 1978 the 180th day passed. On November 2, 1978, a hearing was held on the Commonwealth's application to extend. At the conclusion of that hearing Judge Buckingham granted the Commonwealth's application. Trial
[ 310 Pa. Super. Page 507]
was scheduled to commence and did commence before Judge Buckingham on November 20, 1978.
Appellant concedes that the unavailability of a Commonwealth witness is a basis for an extension of time for commencement of trial, Commonwealth v. Sharp, 287 Pa. Super. 314, 430 A.2d 302 (1981); Commonwealth v. Brown, 252 Pa. Super. 365, 381 A.2d 961 (1977), but claims that the Commonwealth failed to exercise due diligence in setting up and disposing of its application for an extension of time for commencement of trial. Appellant argues that the Commonwealth was aware of the unavailability for trial of Dr. Jensen in August 1978 but did not file its application to extend until September 18, 1978. Appellant also argues that while the Commonwealth's application to extend was filed before the 180th day the hearing and ruling on that application did not occur until after the expiration of the 180 day period and there is no reasonable explanation on the record for this delay. Appellant claims that these unexplained delays denied him his rights under Rule 1100. We disagree.
Rule 1100 provides, in pertinent part:
(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
The fact that the Commonwealth did not file its application to extend the time for commencement of trial immediately upon being informed that Dr. Jensen would be unavailable for trial does not afford appellant a basis for discharge under Rule 1100. Rule 1100 sets forth no time
[ 310 Pa. Super. Page 508]
requirement as to the filing of an application to extend other than that it must be filed prior to the expiration of the period for commencement of trial. Rule 1100 specifically provides that the Commonwealth may file its petition to extend "[a]t any time prior to the period for commencement of trial . . . ." In Commonwealth v. Harrison, 293 Pa. Super. 211, 438 A.2d 612 (1981) and Commonwealth v. Schmoyer, 280 Pa. Super. 406, 421 A.2d 786 (1980), this Court held that a Commonwealth application to extend which was filed on the last day prior to the expiration of the period for commencement of trial was timely. In the instant case the Commonwealth's application to extend was filed two weeks prior to the expiration of the period for commencement of trial. Thus appellant was not denied his rights under Rule 1100 by the filing of the Commonwealth's application to extend in this case.
Nor does an unexplained delay in holding a hearing and ruling on a timely filed application to extend the time for commencement of trial necessarily warrant discharge under Rule 1100 absent some prejudice resulting from the delay. Commonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748 (1982). Our Court has recognized that ruling on a timely filed application to extend the time for commencement of trial may occur after the run-date. Id. It is only when some prejudice is alleged to have resulted to the defendant from the delay that we must inquire into the reasons for the delay. Id. In Fairley, 298 Pa. Super. at 241-42, 444 A.2d at 751, we said:
To begin with, the rule does not delimit a time period in which the petition must be acted upon by the court. However, we have examined speedy trial claims under Rule 1100 where the court delayed a hearing until after the period had run and commented that "[W]e can . . . imagine situations in which prejudice to the defendant would result from such a practice." Commonwealth v. Metzger, 249 Pa. Super.  at 110 n. 2, 375 A.2d  at 783 n. 2. Thus, in order to prevent the risk of prejudice,
[ 310 Pa. Super. Page 509]
"'the lower court should make every effort to dispose of the Commonwealth's petition prior to the expiration of the prescribed period. Any delay past this period must be limited and will possibly be subject to explanation. Such procedure is mandated by the necessity that all concerned be aware of the status of the case. To require otherwise is unfair to the court, the accused, and the people.'" Commonwealth v. Simon, 283 Pa. Super. 203, 206, 423 A.2d 1060, 1061 (1981) (quoting Commonwealth v. Ray, 240 Pa. Super. 33, 360 A.2d 925 (1976)).
While the record in the instant case does not disclose why the Commonwealth's petition was scheduled to be heard seven weeks after the run date, appellant does not allege, nor does the record reveal that he was prejudiced by the court's action. Therefore, under these circumstances, this Court need not inquire further into the reasons for the delay.
As in Fairley, while the record in the instant case does not disclose why the hearing on the Commonwealth's application to extend was held after the run-date, appellant does not allege any prejudice, nor does the record reveal any prejudice to appellant as a result of this delay. Thus since appellant has suffered no prejudice from the unexplained delay in hearing and ruling on the Commonwealth's timely filed application to extend the time for commencement of trial he has not been denied his rights under Rule 1100 in this regard.
Secondly, appellant claims for a variety of reasons that his waiver of a jury trial was not knowing and intelligent. To be valid, the waiver of the right to trial by jury must be an intentional relinquishment or abandonment of a known right or privilege; it must be a knowing, intelligent and understanding waiver of a known right. Commonwealth v. Garrett, 439 Pa. 58, 266 A.2d 82 (1970). Appellant first attacks the legal sufficiency of the waiver ...