holding that Delpiano is not dispositive when there is no evidence as to what date officer placed his vacation request; appellant does not argue that (Footnote Continued Next Page
How later courts described this case
- holding that Delpiano is not dispositive when there is no evidence as to what date officer placed his vacation request; appellant does not argue that (Footnote Continued Next Page
- contested notations in district attorney’s file incompetent to prove trial listed for earliest date consistent with court’s business
- forty-six day continuance resulting from defendant’s tardiness excludable
Written by the judges who cited it.
The opinion
CIRILLO, Judge,
dissenting:
I respectfully dissent from the majority’s holding that the appellant had not waived his Rule 1100 rights at the October 6, 1980 extension hearing.
*485 The Supreme Court in Commonwealth v. Brown, 497 Pa. 7, 11 , 438 A.2d 592, 594 (1981) specified the parameters of a valid waiver of rule 1100 rights as follows:
In this case, appellee and his counsel sat in open court and listened to the judge announce a trial date beyond the last day for trial under Rule 1100, yet they said nothing. This silence on November 15 constituted a waiver of Rule 1100 until the December 15, trial date. Furthermore, this waiver was informed and voluntary: having already expressly and validly waived his rights under Rule 1100 on September 24, it is beyond question that on November 15 appellee already understood the nature and scope of his rights under Rule 1100, as well as the consequence of waiving those rights. (Emphasis added)
In this case, the appellant and his counsel were present in the courtroom on October 6, 1980. Failure to object to the extension at that time constituted a waiver. This waiver was informed and voluntary. The appellant had already expressly waived his rule 1100 rights until August 6, 1980 when defense counsel had requested a continuance.
The Supreme Court of Pennsylvania in Commonwealth v. Lohr, 503 Pa. 130 , 468 A.2d 1375 (1983) has enunciated the standard of review of a trial court’s grant of an extension of time for trial pursuant to Pennsylvania Rule of Criminal Procedure 1100. “This determination is within the realm of discretion of the trial court and absent an abuse of discretion, a grant of extension of time will not be overruled on appeal.” As an appellate court we are bound by this decision.
A review of the record in this case indicates no abuse of discretion. Therefore, I would affirm Judgment of Sentence.
WICKERSHAM, Judge, dissenting:
I would affirm the judgment of sentence.