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COMMONWEALTH PENNSYLVANIA v. KERMETH ROY WRIGHT (06/17/86)

filed: June 17, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
KERMETH ROY WRIGHT, APPELLANT



Appeal from the judgments of sentence of the Court of Common Pleas, Criminal Division, of Indiana County, No. 530 Crim. 1984.

COUNSEL

Morton J. Earley, Indiana, for appellant.

William J. Martin, District Attorney, Indiana, for Com., appellee.

Rowley, Wieand and Del Sole, JJ.

Author: Rowley

[ 354 Pa. Super. Page 121]

OPINION OF THE COURT

This is an appeal from judgments of sentence imposing a sentence of five to ten years incarceration for robbery, a

[ 354 Pa. Super. Page 122]

    concurrent sentence of four to ten years incarceration for burglary, and a suspended sentence for attempted theft. On appeal, appellant raises two issues: 1) whether the line-up and subsequent in-court identification of himself was tainted; and 2) whether Pa.R.Crim.P. 1100 was violated by bringing appellant to trial more than 180 days after the complaint was filed and appellant was arrested. We affirm.

Prior to commencement of trial, appellant was aware of the circumstances which he alleges tainted the line-up and the subsequent in-court identification of him. However, he did not raise this issue in his omnibus pre-trial motion in violation of Pa.R.Crim.P. 323(b), and therefore has waived the issue. Commonwealth v. Scaine, 337 Pa. Super. 72, 486 A.2d 486 (1984); Commonwealth v. Throckmorton, 241 Pa. Super. 62, 359 A.2d 444 (1976). See also: Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979) (Three of the six justices participating in the case specifically stated that failure to raise the issue of the allegedly tainted identification in a pre-trial suppression motion, when the defendant knew of the allegedly improper identification prior to trial, waives the issue.)

Appellant's second issue is that he was not brought to trial within 180 days in violation of Pa.R.Crim.P. 1100. Appellant argues that the 63 days during which his application for participation in the A.R.D. program was pending with the District Attorney must be included in the calculation of the 180 days. Appellant agreed to exclude from the calculation of the 180 day rule the time during which the District Attorney processed and reviewed the application. The application for participation in the A.R.D. program used in this case clearly states: "I hereby waive my rights under Pa.R.Crim.P. 1100 . . . ." This limited waiver of Rule 1100, which is actually an agreement to exclude from the 180 day calculation the time during which the application is pending, is not contingent upon acceptance into the A.R.D. program and must be distinguished from the agreement signed by a defendant in open court upon being accepted into the program. The latter agreement is to exclude from the 180 day

[ 354 Pa. Super. Page 123]

    calculation the time in which the defendant is actually enrolled ...


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