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COMMONWEALTH PENNSYLVANIA v. DEREK GREEN (12/30/83)

decided: December 30, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DEREK GREEN, APPELLANT



No. 6 E.D. Appeal Docket, 1982, Appeal from the November 13, 1981 Order of the Superior Court at No. 997 Philadelphia 1980, reversing the March 27, 1980 Pa.R.Crim.P. 1100 Discharge Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section as of Nos. 1673-74, January Session, 1974, and reinstating Defendant's Conviction for Robbery and Related Offenses, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a dissenting opinion in which Roberts, C.j., joins.

Author: Flaherty

[ 503 Pa. Page 280]

OPINION OF THE COURT

On April 15, 1977, Derek Green was convicted by a jury of the burglary and robbery at the Sylvester Smith family home in Philadelphia. Prior to trial and again in post-trial motions, appellant challenged his conviction on the basis of an alleged violation of Pa.R.Crim.P. 1100(a)(1).*fn1 Appellant prevailed, and the trial court ultimately discharged appellant on the basis of a violation of that speedy trial provision. On appeal by the Commonwealth, a panel of Superior Court, 292 Pa. Super. 299, 437 A.2d 54, (Spaeth, Brosky and Hoffman, JJ.) reversed, and held that appellant had voluntarily and knowingly waived his right to trial within 270 days for an indefinite period of time. We granted Green's petition for allowance of appeal and affirm.

The complaint was filed on January 5, 1974. Pa.R.Crim.P. 1100(a)(1) provides: "Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed." Thus, pursuant to Rule 1100(a)(1), absent any time excludable as provided in Rule 1100(c, d), the last day for trial to commence would have been October 2, 1974.

On August 14, 1974, appellant appeared with counsel in open court and waived his right to be tried as provided in Rule 1100. At that time, defense counsel engaged appellant in a colloquy as follows:

BY [Defense Counsel]:

Q. Mr. Green, speak to His Honor. How old are you?

A. 20.

Q. How far did you go in school?

[ 503 Pa. Page 281]

A. Tenth grade.

Q. Do you read and write the English language?

A. Yes, sir.

Q. Do you realize you are here today on these four outstanding robbery charges?

A. (Indicating.)

THE COURT: Don't nod your head. You have to answer yes or no for the record.

A. Yes, sir.

Q. Are you presently under the influence of any ...


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