*1 tо the is that Mrs. did not know about the argument Kelley lien because the had not returned to her a Company Patz of the lien which she knew copy signed. contract She balance was still owing the contract and that this was This not fully reported the Kibbes. was sufficient to lien, bring knowledge home to Mr. Kibbe of a and a subse- Hence, quent search of the records disclosed none. Kibbe lien, did not have the knowledge although actual of a Mrs. had she Patz Kelley disclosed all knew about the fully circumstances, transaction. Under the jury quite justified exonerating Mrs. from to the Kelley any liability appellants.
Appellant objections makes several to the refusal of the find, Court to make specific charges certain to the We jury. however, that the subject matter of each was adequately covered the Court’s charge supple- and that its refusal to ment its charge or to submit to the interrogаtories were jury matters well within its discretion.
Affirmed.
427 Pennsylvania COMMONWEALTH of KRASNER, Appellant. John Superior Pennsylvania. Court of
Argued June 1980.
Filed March *5 Burns, Pittston,
Francis P. for appellant. Kostelaba, Michael C. Assistant District Wilkes- Attorney, Barre, Commonwealth, appellee. PRICE, CERCONE, Judge, President
Before CAVANAUGH, and WICK- SPAETH, HESTER, BROSKY *6 ERSHAM, JJ.
PRICE, Judge: on March a trial commenced
Following jury 10, 1975, mur- was to commit found solicitation appellant guilty was and appellant der.1 Post-verdict motions were denied He imprisonment. to a term of year sentenced one to two error, none which we instances of alleges now numerous the judgment find meritorious. We therefore affirm sentence.2 or summarized, facts are these. On the salient
Briefly and appellant, operator November owner about 3, 1972, and Jersey, eastern New Pennsylvania adult bookstores in competitor one Flood to murder appellant’s solicited James appel- Flood informed partner, former Allen Morrow. and eliminated, it have Morrow lant that would cost to $20,000 $10,000 following the balance due paid to be in advance with appellant, between subsequent meeting the murder. At a Bobrowicz, Flood, appellant and Flood’s Catherine girlfriend, $10,000 in a and told paper bag in cash brown delivered You bargain. keep yours. “Here’s of the part Flood: my him August Morrow On or about quick.” Hit and hit 19, Morrow, him that appellant Flood contacted informed 1973, to killed, appellant wanted him offered instead murder and Morrow, met the Flood, Morrow’s son price. and at reiterated that following appellant which time Flood day “hit” him Morrow offered to again had hired to kill and Flood, Morrow to recorded appellant. Unbeknownst 1963), 24, 1939, 1101, (Purdon Act of June 18 P.S. § § 1482, P.L. 6, 1972, repealed § December P.L. No. Act of charged (Purdon 1973). appellant was Pa.C.S. The offense § 6, 1973, committing prior date of the effective with occurred June Pennsylvania’s statute is solicitation the new Crimes Code. criminal 1973). (Purdon presently § codified at 18 Pa.C.S. panel appeal originally argued three-judge of this 2. This was before court, importance questions raised but of one of because of cases, among reargument potential before the and a conflict our court en banc directed. conversation with a cassette tape upon recorder concealed thereafter, his Morrow the Penn- person. Shortly contacted Police, information informed them of sylvania State Flood’s offer, and and produced tape August Morrow meeting. agreed cooperate with the police Flood was arrested on 1973 as he ultimately August received a from purported payment During Morrow. inter- rogation, Flood informed the hired police had him November, to kill Morrow and recounted the events of investigation narrative, 1972. Further corroborated Flood’s and appellant was arrested on October 1973 and charged with solicitation to commit murder. first
Appellant’s principal contention is that appeal the trial court erred in his denying motion to dismiss timely the charge him against pursuant 1100(a)(1).3 Pa.R.Crim.P. *7 We conclude that appellant’s unqualified right waiver of his to a prompt trial, which waiver he executed a during lengthy conducted the trial court in the colloquy by presence and with the consent of both of his his attorneys, renders contention meritless.
The facts to our Rule pertinent disposition appellant’s arrest, 1100 claim are as follows. his criminal Following complaint was filed on against appellant October The 6,1974, Commonwealth thus had 270 until days, July or bring appellant Appellant’s trial. trial was originally scheduled to 1974. At a begin May pretrial hearing on that date motion for a continuance was de- 3, 1974, nied. Trial was nonetheless until June postponed because the trial was unavailable. the judge morning On June for Application filed an Writ of Prohibi- tion with this court to direct the trial court to the grant the requested 11, 1974, argument, continuance. On June after 12, 1974, we decline to following issue the writ. On June appellant’s appearance before the trial court on an unrelated 1100(a)(1) provides 3. Pa.R.Crim.P. in a court case in “[t]rial complaint against which a written is filed the defendant after June 1, 1974, July 1973 but before shall commence no later than two seventy (270) days complaint hundred filed.” from the date on which the is case be that the instant matter, asked attorney the district thereupon requested counsel to trial. Appellant’s called continuance, place: took following colloquy and the the about position All what is right, your
THE COURT: waive that? rule, satisfied to are you two-seventy-day Yes, Honor. your [Appellаnt’s MR. MIELE Counsel]: Mr. Levy? THE COURT: No problem. LEVY [Appellant’s
MR. Counsel]: Krasner? THE COURT: Mr. Yes, sir.
MR. KRASNER: Krasner, please? swear Mr. you THE COURT: Would sworn, as herein- testified being duly JOHN KRASNER: after appears. know what Krasner, you I presume
THE COURT: Mr. room, so court but because were transpired you has spe- the Court misunderstanding there would not be any Toole, now that Mr. or instructs you directs cifically this Court of Com- Superior been informed having writ of is prohibition your request monwealth that denied, today, to start requested your Court now. immediately, Procedure and the Rules of Criminal
In accordance with Court and the Supreme holdings United States Commonwealth, are entitled to of this Supreme you Court hundred and seventy to trial within no later than two go complaint written from the date in which the days filed, was November just which Mr. Muroski stated 1973.[4] *8 know, have asked the Court
Both your lawyers, you If the in the future. to continue this case until sometime has been made by your does that grant request Court case, seventy days in more than two hundred сounsel this trial. your date fixed prior will have to the transpired under any The Court will not a continuance grant rights to waive any circumstances if don’t you agree both the United States have to a trial under you speedy complaint parties agree was the criminal 4. The record and the filed October and Pennsylvania constitutions and under the Rule 1100of the Pennsylvania Rules of Criminal Procedure. Do you understand what I am about'? talking Yes, do,
MR. KRASNER: I your Honor. THE COURT: Do have you any questions want to you ask me about it?
MR. I just KRASNER: make a statement? May THE COURT: Yes.
MR. It pertains KRASNER: to this. THE COURT: well. Very MR. I go KRASNER: want to to trial. wants No one togo right me, now faster than I’ve any had it. All right?
Now, all office, we asked that day Judge Brominski’s Honor, your incarcerated, I was I had no isn’t a way—this cop out, I trial, want this I’ve had it and I’m tired of being accused of looking for continuances. And all I have asked is, in this if exculpatory thing you’re justice, interested in are why you so аdamant in denying us what have. you trial, I would set, like a I like would trial date your Honor, so I can have witnesses here. I have to ask witnesses to take off from work to be here. There are some witnesses that are incarcerated in the Luzerne Coun- Jail that I ty would like to have here and I want to make sure that I have witnesses. my trial,
The I would like to start if I immediately prepared it, for it. If you can set a date for I would be perfectly happy.
I do waive that two hundred and seventy day require- ment.
THE COURT: Because it is possible that case your may not be scheduled within that two hundred seventy day period. waive,
MR.
I
KRASNER: That
your Honor.
THE COURT: The Court doesn't want
misunder-
standing now.
represented
You are
by competent counsel
who understand, I’m positive
understand,
I
they
but don't
want any
with
misunderstanding
you
connection with
*9
sir;
I take
that
this,
you
do
it
I
you
this. And
ask
may
this continuance
requesting
join
lawyers
now
with your
said,
as I
to
right,
waive
you
your
and that
specifically
is the
Rule 1100 which
under
rights
trial and
speеdy
your
rule?
two-hundred-seventy-day
do,
That I
Honor.
your
MR. KRASNER:
I’ll
the continuance
right,
grant
THE COURT: All
you
trial date is set
date will
set and when the
a trial
be
be notified.
notified,
counsel will
will be
or your
added).
12-14,
12, 1974)
Appellant
(emphasis
June
(N.T.
it
waiver,
that
claiming
of his
challenges
validity
now
the
refused to grant
the
below
because
court
involuntary
Rule
rights.
he
his
the continuance unless
waived
that
if the waiver was volun-
even
Alternatively,
argues
not
as a
it was of limited duration and thus
effective
tary,
in toto.
disagree
his Rule
We
relinquishment
rights
both
with
contentions.
In Commonwealth v. Myrick, requirements the for (1976), supreme analogized our court to the prompt valid waiver of an accused’s to a right aor requirements (e. g., colloquy formal an on-the-record counsel) accused and signed written waiver the by detailed court rights. for a valid of other The important waiver observed a waiver intend- are requirements these formal
[a]ll to these dеcision waive thing—that ed assure one act of the defendant voluntary is the informed and rights record. can be to be such reference shown record, indication, on the long So there is an is decision of voluntary waiver the informed and Ab- defendant, facie prima validity. it will be accorded will be validity, sent this indication of waiver record Moreover, formal indica- merely ineffective. these are situation, In waiver the defendant tions validity. waiver is invalid by still that the may attempt prove unintelligent or involun- showing unknowing, that it was tary.
Id.,
160-61,
Instantly,
colloquy conducted by
trial court
establish,
facie,
was more than sufficient
to
prima
that
Com
waiver was informed and
appellant’s
voluntary.
Evans,
monwealth v.
85,
489
413
(1980);
Pa.
A.2d 1025
Commonwealth v.
155,
598;
Myrick,
Com
monwealth 211,
Thompson,
262
396
720
Pa.Super.
Wareham,
Commonwealth v.
23,
Pa.Super.
Furthermore,
A.2d 581 (1978).
we are not persuaded that
these circumstances
waiver was
appellant’s
rendered invol
untary merely because the trial court
grant
conditioned its
ing of the requested continuance
a
upon
waiver of Rule
1100. We have
held that when an
previously
accused re
quests
continuance near the
end
Rule 1100
period,
court may
approval
condition its
on the accused’s agreement
to a trial date
See Commonwealth
period.
beyond
Shields,
affirmed,
74,
The success his June of the duration of interpretation turns on our his notwithstanding argues that Appellant 1974 waiver. the 270 waiving day statements unqualified three successive duration rule, be of limited the waiver to intended days to a continuance several because he desired only claim, support for To this his trial. subpoena witnesses he made remarks which following refers us to the No one go “I trial. waiver want during colloquy: me, I’ve had now faster than go right wants to to trial if prepared I was immediately it.... I would like start I be it, perfectly it. date for would If can set a you happy.” *11 context, were they in we believe these remarks
Viewing appellant’s request the trial court persuade intended to not, and were purpose a not in dilatory for continuance was of the therefore, scope as a limitation the contemplated ascribed to purpose waiver. of the Regardless to limit however, insufficient remarks, plainly were they As 1100. unrestricted waiver Rule appellant’s otherwise indicates, appel- colloquy waiver quoted the of the portion occasions that on three successivе lant stated unequivocally rule. None of these day of the 270 protection waived the solely waiver confining statements contained the language period. time any the the or to other period continuance waiver collo- during remarks the other Similarly, appellant’s restricting the language specifically were devoid of quy Furthermore, order of of the waiver. operative duration recom- “Upon the case continuing provided: the trial court defendant, Case is counsel & mendation' of both defense record no There is on this Continued until a later date.”5 Absent evi- time restriction. indication of a definite limitation, we to read into the waiver dence of such a decline plaintiff waived his qualification a not and hold there case, in instant We note that on the date continuance supreme the benefit of our June court did not have Coleman, 400, 406, v. Pa. 383 Commonwealth 477 court’s directive 1268, 1271 granted (1978), requiring be A.2d that all continuances specified period. a 402 rights
Rule 1100 Cf. v. indefinitely. Commonwealth Gard- ner, 282 Pa.Super. 70, (1980) (defendant A.2d exe- cuted a limited waiver of Rule when only his counsel form, noted at bottom of waiver “Please relist for February 7,1977”).
We have upheld the waivers previously validity general of Rule gave unqualified 1100where the defendant respons to questions es the waiver during colloquy, Commonwealth 211, 396 Thompson, Pa.Super. and where signed defendant form that waiver did not confine the duration of length time, the waiver any specific Com Scott, monwealth v. Lee, Pa.Super. 495,
Commonwealth v. A.2d 59 contrast, In our court that an supreme recently concluded accused’s purported waiver of his Rule 1100 rights toto In was invalid. Manley, (1980), the defendant’s first trial in a terminated mistrial when the trial became judge ill. When the Com monwealth failed to a new commence trial within the pre scribed ninety 1100(e), see day period, Pa.R.Crim.P. defendant duly filed an to dismiss application pursuant to (f) section of Rule which application was erroneously denied. One week after his motion to dismiss had been rejected, the requested defendant a continuance because his attorney was case in litigating federal court. The trial *12 court to agreed continue provided the case the defendant and, waived his Rule rights 1100 accordingly, executed the following waiver:
I hereby certify, 1974,] that Honorable [December ALEX BONAVITACOLA orders case cont. to January 1974in 625. Def. on trial in Fed. Court .. . atty. [Room] I, the defendant waive the 270 and day rule as to speedy trial.
A of this majority court held that the thereby defendant executed an unqualified waiver of his to a right prompt and thus could not complain that the trial court erred in denying the to application dismiss. Commonwealth Man- 252 77, 380 lеy, supreme The limited to the however, was concluded, that the waiver court continuance. length the December 9 that the record, cannot conclude
On this we intelligent appellant decision evidences an waiver in toto .... statement his rights Rule 1100 waive [T]he he under- no indication that contains signed by appellant which he right scope stood the nature and not is neces- Although colloquy an on-the-record waiving. understood that the defendant require proof we do sary, his act. consequences here the waiver confirm surrounding The circumstances of his Rule waiver did intend a blanket appellant that not 1100(d) Rule 90-day period prescribed by The rights. exe- waiver was date the had run already prior earlier, on December Just one week cuted. had been erroneously 1100(f) recent Rule application
most a defendant “difficult to believe denied .... is [I]t would bargaining position of his with an appreciation before period right waive his to include knowingly computations.” in his Rule continuance requested Pa. at Manley, Commonwealth at v. Manley, quoting in (emphasis original), (Hoffman and Spaeth, A.2d at Pa.Super. at JJ., dissenting). Manley the circumstances in and signed
The statement stronger support much surrounding provided its execution sub do the circumstances for limited waiver than finding a waivers of Rule general not preclude judice. Manley does be some Manley Rather, requires there only the accused understood indication in the record that colloquy recorded of the waiver. The scope nature Hav- requirement. than satisfies that instant case more of the protec- waiver ing unqualified executed a valid now be heard to com- cannot tion of Rule 270 days. to trial within brought that he was not plain the trial court erred next contends that Appellant venue, thereby change refusing his motion grant *13 404 him
denying a fair trial because of “massive” prejudicial pretrial disagree. We publicity. for a of venue application change is addressed
[A]n
court,
sound discretion of the trial
and its
of
exercise
discretion will
not be disturbed
an
appellate court
discretion. Commonwealth v.
the absence of
of
an abuse
Casper,
Commonwealth
143,
481
A.2d
(1978);
Pa.
392
287
Scott,
v.
Commonwealth
258,
469
(1976);
Pa.
wealth v. 471 Pa. A.2d 1224 (1977). Lohr, Commonwealth v. A.2d Nevertheless, 691-92 neither the mere existence of pretrial publicity nor the possibility potential jurors have formed an based on news accounts will opinion suffice prejudice.6 Commonwealth v. establish presumption Casper, 287 (1978). however, required, totally It jurors ignorant is not be swift, days widespread the facts and issues In involved. these communication, important and diverse methods of can an case be expected public vicinity, to arouse the interest of in the scarcely qualified jurors of those best will to serve not have *14 viz., the factors, whether look to more discrete
We instead hand, factual and was, the one on pre-trial publicity sensational, hand, of or, consisted the other objective, convic demanding “slanted articles and inflammatory (4th v. 423 F.2d tion,” Sawyers, United States the revealed publicity the 1970); pre-trial Cir. whether record; whether criminal prior the existence of accused’s admissions, of reenactments confessions, or it to referred defendant; informa whether such and the crime the and police prosecuto the reports by tion is the of product found, be above elements of the rial officers. Should whether such of is to determine step inquiry the next the extensive, perva and so so sustained has been so publicity to have been be deemed sive the must community it.[7] with saturated omitted).
Id.,
152-53,
(footnotes
407 the court further contends that Appellant Com for mistrial based on the his motion denying erred certain allegedly exculpatory disclose monwealth’s failure to two Commonwealth credibility the concerning material After the Catherine Bobrowicz. witnesses, James Flood and sworn, made counsel was selected and jury following request: would, ask prior testimony, this time we
At and police the state records produce the Commonwealth of the Commonwealth possession any tapes any prior interviews of witnesses summaries of oral in order study of the case the commencement prepare. 1975). The denied
(N.T. 90,
properly
March
trial court
v.
Commonwealth
request
premature,
Grayson,
Kontos,
v.
(1976); Commonwealth
Pa.
Morris, 444 Pa. The Robinson, (1974). 324 A.2d Pa.Super. request to renew his indicates failed appellant record that to request after his initial prior for the material time any at a neglected thus to make taking Having the testimony. trial, appellant at cannot timely request for the evidence of his for court’s denial motion challenge now the trial requests made several The record discloses that counsel requests prior material trial. Those for disclosure this same to then-applicable Pa.R.Crim.P. in with the were refused accordance pretrial discovery. provided, pertinent pertaining in to Rule 310 discovery pretrial part, no shall order that event ... the court “[i]n possession inspection in witnesses the or of written statements of Youngkin, Pa.Su- the Commonwealth.” See Commonwealth Robinson, per. 417, Commonwealth it make These authorities discovery appellant pretrial apparent or was not entitled to that inspection requested material. based, mistrial apparently, prosecution’s on the failure to produce on its evidence own initiative.
Appellant next that below argues court erred in denying his motion after prosecution for mistrial had twice elicited testimony revealing that wit- ness Catherine Bobrowicz had appellant identified from a photographic shown to her array by Pennsylvania State Trooper William Koscinski. direct examination of During Trooper Koscinski, the following exchange occurred:
Q. Attorney Did do to you anything [District Muroski]: determine credibility? [Mrs. Bobrowicz’s] A. [Trooper By? Koscinski]: Q. Did test way? her you A. Yes, sir. I pictures. had group Q. whose pictures And were they?
A. were men They approximately the same age [ap- as I I pellant] and think had about six or seven of those pictures I had on the . placed table...
(N.T. 10, 1975). March objection No at interposed Thereafter, that time. during direct examination of Cather- Bobrowicz, ine following place: took Q. Attorney And when Trooper Kos- [District Muroski]: cinski took a statement from did he you, do with anything you to if you determine knew who was? [appellant] A. Showed me a few quite pictures. [Mrs. Bobrowicz]: He put them all out my counter and asked me pick him out.
Q. were And able to out a you pick picture? (N.T. 404, March 1975). Appellant’s counsel objected and, bar, at side that, moved a mistrial on ground combination, the testimonial references to the photographic array were prejudicial they allowed the jury infer had a criminal prior record. The court denied the motion.
Although it is that well-settled testimonial reference to a photograph constitute errоr may reversible if a jury could reasonably prior infer therefrom activity criminal
409
Carlos,
Pa.
v.
accused, Commonwealth
part
Allen, 448 Pa.
v.
Commonwealth
262,
341 A.2d
that
it is
well-established
177,
(1972),
equally
[T]he the accused that presented from the facts infer reasonably mere passing A activity. criminal prior engaged had infer- a reasonable from which photographs reference to be drawn properly criminal cannot activity ence of prior been since there has proceedings does not invalidate the reference.... no as a result of the prejudice A.2d at 375. Id., 448 Pa. at link ap did not the challenged testimony Instantly, The photo criminal specific prior activity. pellant never dis witnesses were the two graphs by mentioned trial, to at marked, referred admitted or otherwise played, shots” or as “mug “photo nor were characterized as they Smith, v. file.” from a Commonwealth graphs police See words, aside “In other the photo displayed detective police from the fact that It is it to the linking police. else nothing there was graph, alone from this would conclude juror that highly unlikely conduct.” criminal prior had [appellant] engaged In A.2d at 73. Carlos, 462 Pa. at v. Commonwealth reason that should circumstances, nothing “there was such were obtained the photographs to a ably suggest jury crimi prior the defendant’s as a result of by police officials Allen, 448 at v. Pa. nal activity.” Commonwealth Rivera, 470 Pa. at Cf. did not “junkie” (1976) (reference A.2d 719 accused Com activity); criminal prior inference of create reasonable (1977) Hodge, monwealth that he knew testified when officer (no prejudice police con prior a result of nickname as defendant a certain motion denied tacts). properly The court below for a mistrial. *18 also
Appellant contends that the trial court erred in denying his six motions for a mistrial during cross-exami nation of prosecution witness James Flood. Specifically, appellant complains that a mistrial should have been grant ed because Flood’s behavior on cross-examination was “openly deceptive, sarcastic and insulting to the defense counsel, defendant;” sarcastic and insulting to the and that court; Flood “used profanity evaded questions; argued counsel; with defense refused to questions, answer made unresponsive and humorous responses and retorts . . . and ... turned a serious court into a humorous side show ” ... . Brief for at Appellant
A motion for a mistrial
is addressed to the discretion of
the trial court,
it
and
is
within
primarily
the trial
judge’s
discrеtion to determine whether an accused was prejudiced
by misconduct
in the courtroom. Commonwealth v. Gard-
ner, Pa.
Commonwealth v.
(1980);
A.2d 1007
Werts,
483 Pa.
On cross-examination *19 Roberts. To extorted from money that he had never nantly, cаlled Roberts and the rebut this the defense statement examination: following occurred on direct event, associa- during In Q. your [Defense Counsel]: Flood, you any way? did he ever threaten tion with Mr. once. A. Just [Mr. Roberts]: What he to
Q. say you? did Well, I him a week. giving A. was $400.00 Q. What was the threat? Well, didn’t, if I the first time it would be
A.
he told me
time it’d be a box.
leg,
a broken
the second
about that?
Q.
you
Were
concerned
Yes, was,
I
about it.
A.
concerned
very
thereafter, defense
14, 1975).
March
(N.T.
Shortly
in which the
counsel asked Roberts to describe
manner
from Roberts to Flood. The Com-
extortion money passed
sustained, and
question
monwealth’s
to the
was
objection
his
now
trial court
appellant
thereby prevented
claims the
denial of the extortion.
attacking
counsel from
Flood’s
testi
is clear
of Robert’s
quoted portion
It
from
without
permitted,
objec
counsel was
mony
tion,
Flood’s state
testimony directly contrаdicting
to elicit
When
from Roberts.
money
ment
he never extorted
disrupt judicial proceedings.
significantly
A
must interfere with and
actual,
proceeding
showing
prejudice
or to the
imminent
to a fair
of
authority
required,
preservation
is
the court’s
Garrison,
(1978),
danger of
and the
Appellant finally that the assistant dis trict attorney scope permissible exceeded the argument when, address, in his closing remarked that allegedly was man wealthy capable sрending large sums of money defend himself.11 The prosecutor’s closing argument was not but following recorded pertinent placed on the record: colloquy Objection. MR. NEFF [Defense Counsel]: THE COURT: Overruled.
MR. you NEFF: we see at side May bar?
THE Yes. COURT: Honor, MR. BURNS Your I think [Defense Counsel]: counsel is too this his going point far at with relationship them, what defense available had the money were they expending, what were and mak- they providing *20 ing the inference is wealthy that a man and to [appellant] spend extreme of that money amounts and he had it available to prove himself not We move for guilty. a mistrial.
THE COURT: Motion Denied.
(N.T. 635, 17, March 1975). prosecution’s
When the is closing argument recorded, not it is well-settled that order to avail himself of the right object to to improp-
[i]n er remarks or a an misstatement of fact or unfair com- ment, counsel must and move object for the withdrawal of Appellant alleges prosecutor 11. also the committed reversible when, summation, purportedly jury error in his the informed family strangers members of were to the not courtroom they because had been in courtrooms all across the Commonwealth. Appellant objection post-trial failed to raise this his written mo- tions, however, is, therefore, precluded raising and from it for the appeal. Blair, first time on Commonwealth v. 460 Pa. 213 stenog the the court should direct juror,[12]whereupon, understanding the the record court’s rapher place upon to if assigned be may properly remarks so that error the if the denied.... is juror the motion to withdraw the the stenographer upon direct to place court refuses to the made, has the to which been objection record remarks remarks the record by counsel the on opposing may place affidavit. King, 168, 172, 323 A.2d
Commonwealth Pa.Super. See omitted) added). (1974) (citations (emphasis Perkins, 10, 373 also Commonwealth v. 473 Pa. 133 n. Melnyczеn Commonwealth v. (1977); A.2d 1084 n. 10 ko, 317, 325, (1975) (Jacobs, A.2d Pa.Super. J., in although appellant’s counsel concurring). Instantly, to the comment terposed timely objection prosecutor’s mistrial, moved court did not its under place for a on It was comments the record. challenged standing im place allegedly thus upon incumbent appellant affidavit. failed Having remarks on record proper adequate insure preservation take the measures necessary remarks, their challenge propriety cannot Allen, 15, 276 See appeal. Howard, Commonwealth v. (1968).13 is affirmed. judgment of sentence Accordingly, SPAETH, J., files a in which CER- dissenting opinion CONE, Judge, joins. President replaced by jurors been
12. to withdraw have abolished Motions 1118. motions for a mistrial. See Pa.R.Crim.P. error, Appellant all of which are cites three instances additional unworthy He first devoid of merit and thus of extensive discussion. *21 decidedly a hostile attitude maintains that the trial court exhibited Neff, attorney thereby depriving appellant of a fair toward defense single premised upon wherein the trial. a This contention is incident learning reprimanded lunch with court appellant Neff that he had eaten after during prosecution a recess. and witness Allen Morrow presence reprimand the TTie indicates that occurred out of record this jury hardly prejudiced appellant. of See Com- the and could have Whitson, 101, 334 A.2d monwealth v. 461 Pa. SPAETH, Judge, dissenting: agree I do not voluntarily knowingly that defendant and waived for an indefinite and unlimited his to a period right speedy provided trial Pa.R.Crim.P. 1100. An by abiding is temptation to bend the rules when the case is nasty. Here, I suggest, bent, the rules been Once rules bent. have don’t work well. Coleman,
In Commonwealth 400,
Pa.
(1978) (plurality opinion), Justice O’BRIEN wrote
the
that
defendant’s waiver was invalid because the form he signed
no
what
еxplanation of
the
trial
right
speedy
“offer[ed]
406,
to an entered into the Common- Appellant’s permit- wealth. ted was well sentence within the maximum any agreement parties length statute and between the as to binding sentencing judge. sentence was not on the majority opinion 1. The states in footnote 5 of that on its the date continuance, our “the trial court did not have the benefit of Supreme Coleman, Court’s directive in 400, 406, (1978), requiring that all сontinuances granted specified (At-, 5) period.” be for a This observation n. justify majority’s does not failure to did follow Coleman. Neither Supreme trial court Coleman our “have benefit of Court’s announcing change A directive.” decision be the law will
415 of the implications have been advised aware and I am (have/do and application the above consequences of and I further am to the continuance. have) objection not that a continuance trial and speedy of to a my right aware dis- criminal charges said having cause a delay shall of the Court. posed by 211, 262 396 Thompson, Pa.Super. v.
In Commonwealth
dissenting
720,
concurring
noted in
(1978),
723
it was
not be held to have
should
that
the defendant
opinion
because the
rights
colloquy,
1100
waived his Pa.R.Crim.P.
waiver form in
identical
to the
which was substantially
he was
period
how
Coleman,
long
did
specify
not
trial,
inform him that
nor did it
his
waiving
right
1100 motion would be
Pа.R.Crim.P.
result of a successful
v. Man-
in Commonwealth
discharge.
recently,
final
Most
Court
(1980),
Supreme
A.2d 636
our
Pa.
ley,
the defend-
discharged
sentence and
of
judgment
vacated
a blanket waiver
he “did not intend
that
finding
ant after
that
a statement
signing
his Rule 1100 rights” by
Alex
9, 1974], Hon.
that on
hereby certify,
I
[December
27, 1975
January
case
Bonavitacola orders
[continued]
trial in
attorney
Room 625.
[federal]
[Defendant’s]
[in]
Defendant,
rule and as
day
waive the
I the
court
..
trial.
speedy
record,
cannot conclude
we
this
The Court held that “[o]n
by
decision
intelligent
an
... waiver evidences
As in
in toto.
rights
his Rule 1100
to waive
appellant
Coleman,
signed by
the statement
supra,
v.
he understood the
indication that
contains no
appellant
appeal,
one was when
pending
as this
applied
on direct
to cases
Williams,
Pa.Super.
v.
was decided. Commonwealth
Coleman
Furthermore,
not
(1974).
that does
a decision
At appellant waived his Pa.R.Crim.P. rights 2, 1974, until October the date of the next listing This, however, case.2 leaves from unexplained рeriod October 2 until March when the trial was held. finally The record suggests that a considerable of part the delay during that period attributable to the court or the Nevertheless, Commonwealth. there may have been periods of to the delay prior waiver that have been might excludable had the lower court reached the issue.
Therefore, I should vacate the
judgment
sentence and
remand with instructions to the lower court to make a new
Gardner, Jr.,
2. See Commonwealth v.
Filed April Reargument Denied 30, 1981. Denied Nov. Appeal for Allowance Petition