declining to quash an appeal due to a typographical error
How later courts described this case
- declining to quash an appeal due to a typographical error
- 250 days between suppression hearing and trial
- mere silence to continuance setting date beyond Rule 1100 limit does not constitute waiver of rights under rule
- this Court may treat such an error as merely typographical and decline to quash on the basis of such a defect
Written by the judges who cited it.
The opinion
VAN der VOORT, Judge,
dissenting:
I respectfully dissent from the release and discharge of the defendant in this case on the grounds that the trial court violated Pa.R.Crim.P. 1100.
The issue in this case is whether or not the procedure of continuing this case at the conclusion of a suppression hearing, after which the hearing Judge recused himself from any further hearing, for a period of thirty days the end of which period was twenty-three days after the Run date and to which continuance neither the defendant nor his counsel made any objection, is sufficiently leading directly into the guilt determining process or a first step in the trial to comply with the prompt trial requirements of Rule 1100.
We have held that the hearing of a pretrial motion held until the time of trial followed immediately by trial complies with Rule 1100. In the instant case, the hearing on the motion to suppress was on November 15, 1976. At the conclusion of the hearing the Judge suppressed the physical evidence but refused to suppress appellant’s confession. The *135 hearing Judge then recused himself in order that another Judge might hear the case uninfluenced by the testimony adduced at the suppression hearing. The hearing Judge then continued the case to December 15, 1976. No objection to this thirty day continuance was made by appellant nor his counsel nor did appellant make any issue of the fact that this continuance placed the time of trial twenty-three days after the Run date of November 22, 1976.
I believe that where a suppression hearing Judge finds it appropriate to recuse himself from further participation in the trial and postpones the further hearing in the case to a date twenty-three days after the Run date coupled with the fact that neither the defendant nor his counsel make any objection to such a delay the issue of prompt trial under Rule 1100 has been waived by the defendant.
The suppression hearing Judge tried a part of this case when he held a hearing on the suppression motion and made a ruling on the motion. The thirty day continuance of the trial was ordered for the benefit of the defendant who acquiesced in the postponement. Thirty (30) days later he filed his petition to dismiss for failure of the Commonwealth to try him within the 180 days as required by Rule 1100. The tactics utilized by the defense is what is familiarly called “sand bagging” the Commonwealth. After lulling the Commonwealth into believing that the continuance of the trial was satisfactory, the defense turns around and says in effect “even if I did acquiesce in this continuance, I now take it back and demand my discharge.” I would hold that the continuance of thirty days ordered at the conclusion of the suppression hearing to enable the defendant to appear before another Judge for the conclusion of his trial, acquiesced in by the defendant, does not create such an hiatus as to sever the trial process or if it did sever the trial process the prompt trial requirement was waived by the defendant when he made no objection to the proceedings.
I would affirm the judgment of sentence.