Commonwealth v. McCulley

CourtSuperior Court of Pennsylvania
Writing for the CourtAuthor: Gates
Citation410 A.2d 1276,270 Pa.Super. 115
Decision Date28 September 1979
PartiesCOMMONWEALTH of Pennsylvania v. Edwin McCULLEY, Appellant.

410 A.2d 1276

270 Pa.Super. 115

COMMONWEALTH of Pennsylvania
v.

Edwin McCULLEY, Appellant.

Superior Court of Pennsylvania.

September 28, 1979


Argued June 5, 1979. [410 A.2d 1277]

[270 Pa.Super. 117] Richard S. Wasserbly, Doylestown, for appellant.

Stephen B. Harris, First Asst. Dist. Atty., Doylestown, submitted a brief on behalf of Commonwealth, appellee.

Before PRICE, GATES [*] and DOWLING *, JJ.

GATES, Judge:

On September 2, 1976 a criminal complaint was filed charging appellant with burglary and attempted theft. He was apprehended on that date. A preliminary hearing was held on September 13, 1976 and the appellant was arraigned before the Court of Common Pleas of Bucks County on December 29, 1976. At arraignment appellant was notified that his trial date would be January 17, 1977.

On the scheduled date, the defendant failed to appear and a bench warrant was issued. The appellant was apprehended on March 7, 1977. On that day he was told that the next scheduled trial date was April 11, 1977. On that day appellant appeared with the public defender and requested a continuance in order to obtain private counsel. The Commonwealth objected but the trial court granted the continuance and set May 2, 1977 as the trial date. Appellant voiced no objection to the new trial date.

On May 2, 1977 appellant appeared with the same public defender and again requested a continuance. The request was denied. Appellant filed a motion to dismiss pursuant to Rule 1100 which was dismissed after hearing.

[270 Pa.Super. 118] Defendant was then convicted in a bench trial. Posttrial motions were filed and denied. Sentence was imposed and this appeal followed.

The issue before us is the propriety of the lower court's refusal to dismiss the charges on appellant's claim that Rule 1100 was violated.

The criminal complaint was filed on September 2, 1976. Therefore, pursuant to Rule 1100(a)(2) [1] , trial should have commenced on or before March 7, 1977 [2] . Appellant's trial was originally scheduled for January 17, 1977. The defendant did not appear and a bench warrant issued. At the May 2, 1977 hearing the Commonwealth demonstrated that the police officer made reasonable efforts to locate and apprehend appellant [3] . The appellant was not apprehended [410 A.2d 1278] until March 7, 1977, a period of forty-eight (48) days from the date of the first scheduled trial. The Commonwealth contends that this period is excludable in the computation for the reason that appellant was unavailable for trial within the meaning of Rule 1100(d)(1) [4] . We agree.

[270 Pa.Super. 119] At arraignment on December 29, 1976 appellant was notified by the Court of the scheduled trial on January 17, 1977. Additionally, the attorney for the Commonwealth sent written notice to the appellant and the letter was not returned. We conclude that the appellant was unavailable for a period of forty-eight (48) days within the meaning of Rule 1100(d)(1). Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).

Excluding forty-eight (48) days from the computation, the second scheduled trial date of April 11, 1977 was well within the proscribed one hundred eighty (180) days.

The next period of twenty-two (22) days, excluded by the lower court, the appellant contends should not be excluded but should be counted under the provisions of Rule 1100(d)(2) [5] .

The Commonwealth contends that appellant knowingly waived his rights under Rule 1100 by appearing with counsel at the second trial date on April 11, 1977 and requesting a continuance in order to retain counsel of his own choosing. [6] Over the Commonwealth's objection, the trial court set May 2, 1977 as the do or die third trial date. This was with the express knowledge and consent of the appellant. The appellant knowingly waived Rule 1100 because the public defender representing him advised the court that there was a pending application to dismiss under Rule 1100 challenging the exclusion of the first forty-eight (48) [270 Pa.Super. 120] day period. It is fair to assume appellant was aware of the rule's mandate. [7]

We agree with the lower court's findings that the waiver was an informed and voluntary decision on the appellant's part and the appellant agreed to a trial date beyond the one hundred eighty (180) day period. We conclude then that the trial held on May 2, 1977 occurred within one hundred seventy-three (173) days of the filing of the complaint, excluding the two periods we have discussed above. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979); Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Shields, 247 Pa.Super. 74, 371 A.2d 1333 (1977); Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975); Commonwealth v. [410 A.2d 1279] Coleman, 241 Pa.Super. 450, 454-55, 361 A.2d 870 (1976).

PRICE, J., files a dissenting opinion.

PRICE, Judge, dissenting.

The majority affirms the judgment of sentence of the court of common pleas and holds that appellant knowingly waived his Rule 1100 [1] right to a speedy trial when his counsel requested a continuance. I disagree. I can find no support in the record for the majority's finding of waiver, and would therefore remand the case to the court of common [270 Pa.Super. 121] pleas for an evidentiary hearing to determine whether the actions of appellant's counsel on April 11, 1977, constituted a representation of an effective waiver of Rule 1100.

The pertinent facts are as follows. A criminal complaint was filed against appellant on September 2, 1976. Under the precept of Rule 1100(a)(2), the Commonwealth had 180 days, or until March 1, 1977, to bring appellant to trial. Trial commenced on May 2, 1977, 242 days after the filing of the complaint. Trial had been initially scheduled for January 17, 1977, but appellant failed to appear. A bench warrant was issued and was later withdrawn on March 7, 1977, when appellant was arrested and bail set. Appellant requested and received a continuance on April 11, 1977, to secure private counsel, and prior to trial on May 2, 1977, the court of common pleas denied a petition by appellant to dismiss the charges under Rule 1100. [2]

The disputed waiver resulted from the following dialogue which occurred on the day appellant requested a continuance to secure private counsel.

"THE COURT: What is the situation with regard to a trial date? Certainly Mr. McCulley, if there is a possibility of securing counsel of (your) own choice he should do so. I am willing to go along with that.

Do you want to fix trial for a date certain at this point?

What does my criminal calendar look like?

MR. SCHENCK (Assistant District Attorney): The next criminal date is May 2nd.

THE COURT: What is the situation with regard to Rule 1100?

MR. WASSERBLY (Assistant Public Defender): I have already filed an application for Rule 1100.

THE COURT: I will grant the continuance until May 2nd. On that date it's going to be tried unless there is some reason why it should not be. But I am letting you know that that's the date that is fixed for trial. " (N.T. 4/11/77 3-4).

[270 Pa.Super. 122] The majority opinion states that "appellant knowingly waived Rule 1100 because the public defender representing him advised the court that...

To continue reading

Request your trial
5 practice notes
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...words of President Judge G. Thomas Gates of Lebanon County, speaking for [317 Pa.Super. 432] this Court in Commonwealth v. McCulley, 270 Pa.Super. 115, 120 n. 7, 410 A.2d 1276, 1278 n. It was the appellant who caused all the delay and now complains that his rights to a speedy trial have bee......
  • Com. v. Taylor
    • United States
    • Superior Court of Pennsylvania
    • March 8, 1985
    ...Pa. at 354-56, 392 A.2d at 1330-31. See also Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983); Commonwealth v. McCulley, 270 Pa.Super. 115, 410 A.2d 1276 (1979); Commonwealth v. Schwartz, 304 Pa.Super. 125, 450 A.2d 133 (1982); Commonwealth v. Snyder, 280 Pa.Super. 127, 421 A.2......
  • Com. v. Snyder
    • United States
    • Superior Court of Pennsylvania
    • June 10, 1988
    ...131, 421 A.2d 438, 440 (1980); Commonwealth v. Mizic, 274 Pa.Super. 331, 336, 418 A.2d 432, 433-34 (1980); Commonwealth v. McCulley, 270 Pa.Super. 115, 119, 410 A.2d 1276, 1278 Defendant urges us, on this appeal, to find that his failure to appear for court arraignment was not a "willful fa......
  • Com. v. Martin
    • United States
    • Superior Court of Pennsylvania
    • June 11, 1982
    ...Commonwealth v. Rodriquez, 291 Pa. Superior Ct. 239, 435 A.2d 888 (1981); see also Commonwealth v. McCulley, 270 Pa. Superior Ct. 115, 410 A.2d 1276 Appellant's next contention is that the court erred in failing to suppress certain evidence. He claims that the store detective, who searched ......
  • Request a trial to view additional results
5 cases
  • Com. v. Colon
    • United States
    • Pennsylvania Superior Court
    • July 29, 1983
    ...words of President Judge G. Thomas Gates of Lebanon County, speaking for [317 Pa.Super. 432] this Court in Commonwealth v. McCulley, 270 Pa.Super. 115, 120 n. 7, 410 A.2d 1276, 1278 n. It was the appellant who caused all the delay and now complains that his rights to a speedy trial have bee......
  • Com. v. Taylor
    • United States
    • Superior Court of Pennsylvania
    • March 8, 1985
    ...Pa. at 354-56, 392 A.2d at 1330-31. See also Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983); Commonwealth v. McCulley, 270 Pa.Super. 115, 410 A.2d 1276 (1979); Commonwealth v. Schwartz, 304 Pa.Super. 125, 450 A.2d 133 (1982); Commonwealth v. Snyder, 280 Pa.Super. 127, 421 A.2......
  • Com. v. Snyder
    • United States
    • Superior Court of Pennsylvania
    • June 10, 1988
    ...131, 421 A.2d 438, 440 (1980); Commonwealth v. Mizic, 274 Pa.Super. 331, 336, 418 A.2d 432, 433-34 (1980); Commonwealth v. McCulley, 270 Pa.Super. 115, 119, 410 A.2d 1276, 1278 Defendant urges us, on this appeal, to find that his failure to appear for court arraignment was not a "willful fa......
  • Com. v. Martin
    • United States
    • Superior Court of Pennsylvania
    • June 11, 1982
    ...Commonwealth v. Rodriquez, 291 Pa. Superior Ct. 239, 435 A.2d 888 (1981); see also Commonwealth v. McCulley, 270 Pa. Superior Ct. 115, 410 A.2d 1276 Appellant's next contention is that the court erred in failing to suppress certain evidence. He claims that the store detective, who searched ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT