435 A.2d 1204 (Pa. 1981), Commonwealth v. Warner

Citation:435 A.2d 1204, 495 Pa. 646
Party Name:COMMONWEALTH of Pennsylvania, Appellant, v. Jeffrey A. WARNER.
Case Date:September 24, 1981
Court:Supreme Court of Pennsylvania
 
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Page 1204

435 A.2d 1204 (Pa. 1981)

495 Pa. 646

COMMONWEALTH of Pennsylvania, Appellant,

v.

Jeffrey A. WARNER.

Supreme Court of Pennsylvania.

September 24, 1981

Submitted May 18, 1981.

Page 1205

[495 Pa. 647] Gary E. Hartman, Dist. Atty., for appellant.

John R. Gailey, Jr., York, for appellee.

Before ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.

OPINION OF THE COURT

PER CURIAM:

Appeal dismissed as improvidently granted. See Quinn v. Muscare, 425 U.S. 560, 96 S.Ct. 1752, 48 L.Ed.2d 165 (1976) (certiorari dismissed where, subsequent to grant of writ, developments in law make review unnecessary).

LARSEN, J., files a dissenting opinion in which KAUFFMAN, J., joins.

FLAHERTY, J., files a dissenting opinion in which KAUFFMAN, J., joins.

LARSEN, Justice, dissenting.

I dissent from the dismissal of this appeal as improvidently granted. In my opinion, the Superior Court acted improperly in discharging appellee, under Rule 1100 of the Pennsylvania Rules of Criminal Procedure, and its order should be reversed.

The appellee in this case was charged with driving while under the influence (formerly 75 P.S. § 1037) and involuntary manslaughter (18 Pa.C.S.A. § 2504) for the death that [495 Pa. 648] resulted therefrom. The incident occurred in July of 1977, and trial was scheduled to begin the same month. Appellee's counsel, however, petitioned the trial court for a continuance and was granted the same. On the "Application for Trial Continuance" appellee signed his name after the following paragraph:

I am aware and have been advised of the implications and consequences of the above application and (do not have) objection to the continuance. I am further aware of my right to a speedy trial and that a continuance shall cause a delay in having said criminal charges disposed of by the Court.

Further, the letter from appellee's counsel which accompanied the pleading stated:

As you can see, the defendant has knowingly and voluntarily waived the requirement of Rule 1100 as it applies to this continuance.

Trial was then scheduled for the first criminal trial term following the term in which the continuance was granted. Before jury selection began, appellee moved to have the charges dismissed pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure since 210 days had elapsed from the filing of the...

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