author: MONTEMURO, Judge:

text:
    469 A.2d 632
    COMMONWEALTH of Pennsylvania v. Otto Martin JENSCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 28, 1983.
    Filed Nov. 25, 1983.
    Petition for Allowance of Appeal Denied April 24, 1984.

      William R. Bernhart, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

Before us is an appeal from the judgment of sentence of the Court of Common Pleas of Berks County entered against the appellant, Otto Martin Jensch. The appellant was convicted, after a jury trial, of one count of possession with intent to deliver a controlled substance (marijuana), and one count of delivery of a controlled substance (marijuana). The appellant’s post-verdict motions were denied and on June 4, 1981, the appellant was sentenced to concurrent sentences of imprisonment of one (1) to three (3) years and a fine of five hundred ($500.00) dollars. Appellant filed a timely appeal from that judgment.

The appellant presents five issues for our consideration. After reviewing his arguments, we find no error and consequently affirm the judgment of the trial court.

The appellant’s first contention is that the trial court erred in not dismissing the charges against the appellant as a consequence of a violation of Pa.R.Crim.P. 1100. We disagree. The procedural history of this case, while lengthy and complicated, fails to reveal any violation of Rule 1100.

The relevant history begins on January 11, 1980 when this court, acting on an appeal from the appellant’s first trial, reversed the judgment and remanded for a new trial, Commonwealth v. Jensch, 274 Pa.Super. 166, 418 A.2d 399 (1980). According to the docket entries, the certified record was remanded on February 14, 1980. Prior to the remand of the record, the Commonwealth scheduled appellant’s new trial for February 10, 1980 (See note 3, infra). On February 5, 1980, defense counsel filed a motion for continuance until March 10, 1980. The motion form included a waiver of Rule 1100 which was signed by appellant and counsel. The appellant filed two more continuance motions: one on March 10 requesting a continuance until March 21; and one on March 17 requesting a continuance until April 18, 1980. Each contained the waiver provision and each was signed by appellant and counsel.

On June 17, 1980, pursuant to a negotiated plea, the appellant entered a plea of guilty to the charge of delivery of a controlled substance. Sentencing was deferred.' On July 11, 1980, and September 5, 1980, sentencing was again deferred because the district attorney was not present. On September 25, the trial judge informed the appellant that he refused to accept the negotiated plea. He instructed defense counsel to file a petition to withdraw the plea. Defense counsel filed the petition on October 2, 1980.

The guilty plea was stricken on November 3, 1980. On December 9, 1980, following a hearing in which the Honorable Warren K. Hess denied appellant’s motion to dismiss under Pa.R.Crim.P. 1100(f); a jury was sworn and the case proceeded to trial. That same day a mistrial was granted.

Finally on March 10, 1981, the case proceeded to trial before the Honorable W. Richard Eshelman and a jury. The trial culminated in a jury verdict on March 12, 1981.

Based on this procedural history we conclude that there has been no violation of Rule 1100. We discern four intervals in the procedural history, each of which must be analyzed separately.

The first interval commences with the remand of the certified record from this court to the trial court on February 14, 1980, and ends upon the entry of appellant’s guilty plea. This interval consists of a period of 121 days. When an appellate court grants a new trial, said trial must commence within 120 days of the remand of the record to the trial court. Pa.R.Crim.P. 1100(e)(2). Trial is deemed to have commenced for purpose of Rule 1100 when the appellant tenders a guilty plea. Pa.R.Crim.P. 1100(b). Since the commencement of trial occurred 121 days after the remand of the record, and because the Commonwealth filed no petitions to extend the run date, we must find at least one day to be excluded from this period under Pa.R.Crim.P. 1100(d), or we must dismiss the case with prejudice, Pa.R. Crim.P. 1100(f).

Herein appellant requested and was granted three continuances — each containing a signed waiver of the appellant’s Rule 1100 rights. Pa.R.Crim.P. 1100(d)(2) provides that “any period of time for which the defendant expressly waives Rule 1100” shall be excluded from the period for commencement of trial.

This court has often had occasion to consider the validity of a defendant’s waiver of his Rule 1100 rights. In Commonwealth v. Moyer, 301 Pa.Super. 414, 416-17, 447 A.2d 1034, 1035-36 (1982), the court stated:

A defendant may temporarily waive his rule 1100 rights, like the constitutional right to a speedy trial that it was designed to protect, by signing an appropriate statement explaining the nature of the rights he is waiving, “[s]o long as there is an indication, on the record, that the waiver is the [defendant’s] informed and voluntary decision.” Commonwealth v. Rodriguez, 291 Pa.Superior Ct. 239, 435 A.2d 888 (1981). The signing of an appropriate waiver document is prima facie evidence that the waiver was informed and voluntary, Commonwealth v. Myrick [468 Pa. 155, 360 A.2d 598 (1976)], supra, and may alone establish the waiver when there is no other indication on the record that it was signed involuntarily or unknowingly, Commonwealth v. Wilson, 294 Pa.Superior Ct. 101, 439 A.2d 770 (1982); Commonwealth v. Scott, 272 Pa.Superior Ct. 236, 239, 414 A.2d 1095, 1097 (1979). Nevertheless, when the circumstances surrounding the waiver cast doubt on its voluntariness, the Commonwealth must offer more than the document itself to establish its validity. Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980). Accord, Commonwealth v. Myrick, supra. See Commonwealth v. Rodriguez, supra (colloquy). “Although an on the record colloquy is not necessary, we do require proof that the defendant understood the consequences of his act.” Commonwealth v. Manley, supra., 491 Pa. at 469, 421 A.2d at 640.

See also, Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981); Commonwealth v. Martin, 300 Pa.Super. 497, 446 A.2d 965 (1982). The waiver forms signed by the appellant and by counsel establish prima facie the validity of the waiver. Appellant contends, however, that the waivers were involuntary because he signed them only so that he could return to his place of business instead of waiting for trial. This contention is specious. We conclude that this was a voluntary choice on the part of the appellant and therefore has no effect on the validity of the waiver. The period of time for which appellant waived his Rule 1100 rights, and which was therefore excluded, greatly exceeded the one day needed to be excluded. Consequently, we perceive no violation.

The second interval which we must consider is the period between the tender of the guilty plea and the appellant’s withdrawal of the guilty plea. Following the tender of the guilty plea by the appellant, the trial court deferred sentencing. The record does not indicate the trial court’s reasons for so deferring. On July 11 and September 5, the trial court again deferred sentencing due to the absence of the prosecutor. On September 25, the trial judge rejected the plea bargain.

We conclude that this period is not material to any Rule 1100 calculation. The period after the entry of a guilty plea which the court uses to determine the appropriate sentence is not part of the Rule 1100 calculation. Commonwealth v. DiSantis, 293 Pa.Super. 154, 158, 437 A.2d 1252, 1254 (1981); Commonwealth v. Juliano, 282 Pa.Super. 226, 422 A.2d 1088 (1980). The period herein was used by the court to determine whether the sentence negotiated by the parties was appropriate. Furthermore, it was a period after the commencement of trial and therefore irrelevant to Rule 1100. Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982); Commonwealth v. DiSantis, supra. Additionally, we must consider this interval to extend through November 3; the time when the court ordered the withdrawal of the guilty plea. Cf. Commonwealth v. Whittall, 304 Pa.Super. 258, 261-66, 450 A.2d 669, 671-73 (1982).

The third interval we must consider is the period following the withdrawal of the guilty plea until the commencement of trial on December 9. It is well established that the withdrawal of a guilty plea, like the grant of a new trial, begins a new 120 day period in which the Commonwealth must bring a defendant to trial. Commonwealth v. Whittall, supra; Commonwealth v. DiSantis, supra; Commonwealth v. Bytheway, 290 Pa.Super. 148, 434 A.2d 173 (1981). Herein trial commenced 36 days after the withdrawal of the guilty plea. There is no violation.

Finally, we consider the interval between December 9, 1980 and March 10, 1981. On December 9, a mistrial was declared by the court. On March 10, a jury was selected and the appellant’s trial (which led to the conviction upon which this appeal is based) commenced. It is clear that the Commonwealth has 120 days following mistrial to bring a defendant to trial. Pa.R.Crim.P. 1100(e)(1). Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980); Commonwealth v. Bytheway, supra. The appellant’s trial commenced 90 days after the declaration of the mistrial. Thus, we perceive no violation of appellant’s Rule 1100 rights.

The appellant’s second argument is two-fold: (1) the verdict is against the weight of the evidence; and (2) the evidence is insufficient to sustain the verdict. We shall address these contentions separately.

A determination of whether a new trial should be granted because the verdict is against the weight of the evidence is a determination committed to the discretion of the trial court. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204 (1983). The trial court’s decision will not be reversed absent an abuse of discretion. Commonwealth v. Zapata, supra; Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982). Moreover, “It is settled that a new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice.” Id. 303 Pa.Super. at 509, 450 A.2d at 42; Commonwealth v. Barnhart, 290 Pa.Super. 182, 434 A.2d 191 (1981).

The Commonwealth presented the testimony of one Douglas Rentschler, a deputy sheriff in Berks County, who was working as an undercover agent in conjunction with the Reading Bureau of Police Vice Squad. Rentschler had been introduced to the appellant by one Janis Miller, who had formerly dated the appellant. Miller was also working with law enforcement officials as an informant.

On the evening of May 18 appellant returned a call from Rentschler and in a telephone conversation about 10:00 p.m. appellant asked Rentschler if Rentschler was looking for some “grass”, and Rentschler replied that he was looking for some “weight”, meaning a quantity of grass. Appellant told Rentschler that he would call him back and did so around 11:55 p.m. on May 18, 1977. Appellant told Rentschler that his friend only had 30 pounds and that he (appellant) would call Rentschler back the next day. Rentschler called appellant on May 19, 1977, at 7:15 p.m., when the appellant stated that his friend only had 25 pounds, that his friend had to go to Allentown, Pennsylvania, and that appellant would call Rentschler later that evening around 9:00-10:00 p.m. Appellant called Rentschler at approximately 10:00 p.m. and arrangements were made to meet in Room 1406 of the Abraham Lincoln Motor Inn in Reading at 11:15 p.m., to transact a purchase of 25 pounds of marijuana at $350 cash per pound. Rentschler told appellant that he would be bringing his “man” along, who was Detective William McGuire of Reading Bureau of Police Vice Squad Unit. The officers also reserved Room 1404, the room adjoining Room 1406. Rentschler, McGuire and Lieutenant Frederick Yerger of the Reading Bureau of Police went to the Motor Inn around 10:45 p.m. to set up the rooms, with Yerger standing by in Room 1404. Appellant arrived at Room 1406 around 11:25 p.m. After introducing appellant to undercover agent McGuire and engaging in small talk, appellant revealed a plastic bag containing vegetable matter which appeared to Rentschler to be marijuana, and appellant stated that it was a sample but that the “stuff” he had for them was better. Appellant then removed the vegetable matter and began to separate stems and leaves on a telephone book. Appellant rolled two marijuana cigarettes. Appellant passed one of the marijuana cigarettes to Rentschler who lit it and simulated smoking it, then passed it to McGuire who also simulated smoking it. They then discussed “weight” again and appellant stated that he could get only 24 pounds at $350 per pound, or $8,400 worth. Appellant told them he did not have the marijuana with him and that they would have to go to the Pep Boys parking lot in Reading where his car was parked. Before leaving, Rentschler repeated in a loud voice their destination so that Yerger could hear him in the next room and call other police units in the area for surveillance. Around 11:50 p.m., Rentschler, McGuire and appellant left the room, got into McGuire’s personal car and proceeded to the Pep Boys parking lot with the understanding that they would return to the Motor Inn. In several minutes they arrived at the parking lot and appellant directed McGuire to drive up to his car. Appellant opened the trunk of his car revealing two green garbage bags which contained green vegetable matter. As they stood at the trunk of appellant’s car, they again discussed a price of $8,400 for both bags, but no cash was exchanged. McGuire then checked the contents of the green bag which he suspected to be marijuana. Appellant lifted the bag several inches and handed the bag to McGuire who removed the bag from the trunk. McGuire then raised his hand to his head, a predesignated signal to backup police units, and appellant was placed under arrest.

At trial, counsel stipulated that Paul Skrimcovsky, a state police criminologist, was an expert at drug identification. Skrimcovsky testified that the green vegetable matter delivered by appellant to the police was marijuana. McGuire testified that in his opinion the quantity of marijuana in the two bags was sufficient to constitute a potential dissemination of the drug, the quantity being more than would be expected to be used by a single individual.

Appellant, in an effort to show that he was entrapped, testified in his own behalf, as did his girlfriend, Barbara Snedaker, concerning communications and meetings with Rentschler and with a Janis Miller, who was an undercover agent working with Rentschler.

Appellant asserts that his evidence offered in support of the entrapment defense overwhelms the evidence supporting the conviction. We disagree. The appellant’s entrapment defense depended for the most part on his own credibility. Credibility is an issue for the finder of fact that will not be disturbed on appeal. The trier of fact is free to believe all, part or none of the testimony. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). We find no abuse of discretion in the trial court’s refusal to grant a new trial.

Appellant also asserts that the evidence is insufficient to support the verdict.

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982).

We have reviewed the evidence in light of this standard and there is no doubt that it is sufficient to sustain the verdict.

Appellant’s third argument is that the trial court erred in its charge to the jury on the defense of entrapment. The appellant submitted three points for charge, each of which, in variegated language, placed the burden of disproving entrapment on the Commonwealth. The trial judge rejected these points for charge.

The appellant, however, has failed to preserve this issue for appellate review by failing to specifically object to the trial judge’s charge as required by Pa.R.A.P. 302(b). See also Commonwealth v. Todaro, 301 Pa.Super. 1, 7, 446 A.2d 1305, 1308 (1982) (Hoffman, J. concurring); Crosbie v. Westinghouse Elevator Company, 297 Pa.Super. 304, 443 A.2d 849 (1982). This issue has been waived.

The appellant also argues that a new trial should be granted because the trial judge improperly excluded testimony about statements allegedly made by Janis Miller, a Commonwealth informer. Miller was not present and did not testify at trial. During the cross-examination of Douglas Rentschler and the direct examination of Barbara Snedaker, counsel made an offer of proof at sidebar that in early May, 1977, at the Rathskeller Bar in Boyertown, Miller said to Snedaker and Rentschler, “I’ll get his ass.” (referring to the appellant). The trial judge ruled that the statement was hearsay and refused to admit it.

However, we need not determine whether the trial court’s ruling was in error. The statement which counsel sought to introduce was brought in during the testimony of Barbara Snedaker (N.T. March 12, 1980, pp 164-165). The Commonwealth did not object. Therefore, the error, if any, was harmless.

The appellant’s final contention is that the trial court erred in refusing to give the appellant’s requested points for charge numbers 9 and 11. Once again appellant has failed to preserve this issue by raising a specific objection to the trial court’s charge. Pa.R.A.P. 302(b). Commonwealth v. Todaro, supra; Crosbie v. Westinghouse Elevator Company, supra.

Since we find no merit in the appellant’s arguments, the judgment of sentence of the trial court is affirmed.

      . 35 P.S. § 780-113(a)(30).

      . Id.

      . The three continuances were: (1) February 5 to March 10 — period of 34 days; (2) March 10 to March 21 — a period of 11 days; and (3) March 17 to April 18 — a period of 32 days. In calculating the number of days for the first continuance, we conclude that only the period subsequent to February 14 should be included because it was at this time that jurisdiction was returned to the trial court. Thus the period of the first continuance is 25 days. Furthermore, because of the overlap between the second and third continuance, we will consider the third continuance to be 28 days.


source: Caselaw Access Project

author:
HOFFMAN, Judge:
      POPOVICH, Judge, ROWLEY, Judge,

license: Public Domain

text:
    469 A.2d 639
    COMMONWEALTH of Pennsylvania, Appellant v. Louis KRIPPLEBAUER.
    Superior Court of Pennsylvania.
    Argued April 27, 1983.
    Filed Nov. 25, 1983.
    Reargument Denied Jan. 26, 1984.
    Petition for Allowance of Appeal Granted Aug. 16, 1984.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Michael James Healey, Pittsburgh, for appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

The Commonwealth contends that the lower court erred in discharging appellee because he was denied a speedy trial guaranteed him by the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101, Art. IV(c). We disagree and, accordingly, affirm.

On November 9, 1981, appellee was brought to Pennsylvania to face a conspiracy charge. Pursuant to the Agreement on Detainers, the Commonwealth was required to bring appellee to trial within 120 days, or before March 9, 1982. On December 10, 1981, the Commonwealth petitioned to consolidate appellee’s case with those of two co-defendants and inadvertently listed appellee’s rúndate as April 4, 1982. On December 17, the lower court set a tentative trial date of January 19, 1982. However, on December 28, the lower court held a preliminary hearing and subsequently granted appellee thirty days in which to file pre-trial motions. On January 19, the Commonwealth’s motion to consolidate was denied because the charges against appellee’s co-defendants were dismissed. The lower court denied the Commonwealth’s request to set the trial for January 29, just one day after the termination of appellee’s thirty day period for filing pre-trial motions, noting the request was unreasonable and gave the court no time to consider any motions filed. . The lower court, relying on the Commonwealth’s original, albeit mistaken, rúndate, then scheduled the trial for March 30. On March 12, appellee filed a motion to dismiss because he had not been tried within the requisite 120 days. On March 16 the Commonwealth, having renewed charges against the co-defendants, again petitioned for consolidation. The petition was granted, but trial was postponed until May 3 because of the unavailability of counsel for one co-defendant. On March 31, the Commonwealth petitioned to extend the time for trial, again, mistakenly pursuant to Pa.R.Crim.P. 1100. Finally, on July 9, the lower court, finding that appellee had not been tried within 120 days of his entering Allegheny County, dismissed the conspiracy charge. The Commonwealth appeals his dismissal.

The Detainer Agreement provides:

In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the-arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

42 Pa.C.S.A. § 9101 Art. IV(c). The Act also states that:

In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

42 Pa.C.S.A. § 9101 Art. VI(a).

The Commonwealth maintains that the lower court erroneously dismissed the charge because appellee had been “unable to stand trial” during the thirty day period he requested to file pre-trial motions and on the requested trial .date one day later, thus the rúndate was extended at least to April 9, 1982, making the Commonwealth’s petition to extend timely. We find this contention meritless. Our Supreme Court has held the 120-day period tolled by a defendant’s consenting to waive his speedy trial rights and by his own requests for continuance. Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (defendant agreed to a continuance six days before the 120-day rúndate and, although the issue was not addressed, requested and was granted six continuances).

Here, however, appellee neither voluntarily waived his speedy trial rights by his own actions, nor consented to their waiver. Rather, appellee exercised his right, pursuant to Pá.R.Crim.P. 307, in requesting thirty days after his preliminary hearing to file pre-trial motions. At no time did appellee request a “continuance” that would have necessitated setting back the proposed trial date. Defendants’ motions to remand for and request a new preliminary hearing have not been treated by our Court as requests for continuances. Commonwealth v. Goodman, 260 Pa.Superior Ct. 266, 393 A.2d 1256 (1978); Commonwealth v. Delauter, 257 Pa.Superior Ct. 510, 390 A.2d 1354 (1978). In Goodman, the Court reiterated its express disapproval in Delauter of courts’ considering a “remand for a preliminary hearing as a request for a continuance,” Goodman, supra, 260 Pa.Superior Ct. at 277, 393 A.2d at 1261, and noted “[i]f this is true, then every pre-trial application that causes delay in trial is, in effect, an application for continuance.” Delauter, supra, 257 Pa.Superior Ct. at 512, 390 A.2d at 1355. Because a request for a preliminary hearing is part of the pre-trial proceedings to which a defendant is entitled, and is not considered a “continuance,” we conclude that a request for thirty days to file pre-trial motions is equally part of pre-trial proceedings, and must be similarly treated.

Accordingly, we find that appellee’s exercising his right to file pre-trial motions does not amount to a request for a continuance and does not affect his ability to stand trial. We therefore affirm the lower court’s dismissal of appellee pursuant to the Agreement on Detainer.

Affirmed.

POPOVICH, J., files a concurring opinion.

ROWLEY, J., files a dissenting opinion.

POPOVICH, Judge,

concurring:

I agree with the result reached by Judge Hoffman, but write separately to make two points. First, since the Commonwealth initiated the filing of charges that commenced the workings of the legal process, it was cloaked with the obligation of assuring the accused that all procedural and substantive due process requirements were complied with; one of which was the right to a speedy trial. Such a right has been equated, at least under the Agreement on Detainers Act (42 Pa.C.S.A. § 9101 et seq.) as well as our own Pa.R.Crim.P. 1100, with a time stricture (i.e., 120 days for the former and 180 days for the latter).

Under the record here, appellant is entitled to the relief provided for under the law because the Commonwealth has failed to meet its obligation to bring the appellant to trial within the 120 days called for under the Agreement on Detainers Act. 42 Pa.C.S.A. § 9101 (Art. IV(c)).

Second, the Commonwealth’s contention that the 30 days granted the appellant to prepare his pre-trial motions are excludable from the 120-day time table, and this makes its petition for an extension to try the appellant proper and the ultimate trial timely, is tenuous. For example, even under the applicable section of Rule 1100 in effect at the time in question, only that period exceeding the 30 days granted the appellant for a continuance, assuming for the sake of argument that appellant’s pre-trial motions request is the equivalent of a request for a continuance, is excludable from the calculation of the 180-day run date, Pa.R.Crim.P. 1100(d)(2). This analogy is proper inasmuch as the Commonwealth wishes us to apply Rule 1100 case law in making our determination. Thus, since the trial court granted appellant only 30 days to act on various pre-trial matters, the time consumed in this endeavor would not be excluded from the 120-day run date. Cf. 1981 version of Pa.R.Crim.P. 1100(d)(2). In other words, the Commonwealth cannot circumvent this “30-day plus” method of tabulation as a means of ascertaining whether it acted with due diligence in bringing appellant to trial.

ROWLEY, Judge,

dissenting:

Article IV(c) of the Interstate Agreement on Detainers [42 Pa.C.S.A. § 9101] (the Agreement) provides that any prisoner returned to a receiving state pursuant to Article IV of the Agreement for trial on an untried information or complaint shall be tried “within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” Because my review of the record in this case convinces me that a continuance beyond the 120-day period was not only reasonable but necessary, I respectfully dissent.

This is not, to say the least, a simple case. Therefore, a review of the record events is appropriate. On October 6, 1981, an information was filed by the District Attorney of Allegheny County charging the appellee, Louis Kripplebauer, with criminal conspiracy a felony of the second degree. It was charged that Mr. Kripplebauer conspired with five other named individuals to commit the crimes of criminal homicide, theft by extortion, kidnapping and robbery. The alleged victims of the conspiracy were two prominent citizens of the Pittsburgh area. It is charged that the offenses were to be carried out through a highly sophisticated plan involving the use of explosives and electronic devices.

On November 9, 1981, appellee was transferred from the United States Penitentiary at Lewisburg, Pennsylvania to Allegheny County pursuant to the provisions of Article IV of the Agreement. On December 10, 1981, the Commonwealth petitioned to consolidate appellee’s case with the cases of two of the alleged co-conspirators, one Gary Small and one Henry Ford. The following day, December 11, 1981, appellee was arraigned. On December 17, 1981, appellee filed an answer to the Commonwealth’s petition for consolidation. He also filed a motion to quash the information based on the Commonwealth’s alleged failure to comply with the procedural requirements of the Agreement. He also requested that he be granted a preliminary hearing because the grand jury presentment did not recommend his prosecution. Appellee’s request for a preliminary hearing was granted and it was scheduled for December 28, 1981. On December 28, 1981, a preliminary hearing was held for the appellee before the Honorable Ralph J. Cappy, Judge of the Court of Common Pleas of Allegheny County. At the conclusion of that hearing, appellee was held for court and, at his request, was granted 30 days to file pre-trial motions. He claimed 30 days were necessary because of the voluminous records in the cases of three co-conspirators.

Subsequently, due to a technicality, the charges against the alleged co-conspirators, Gary Small and Henry Ford, were dismissed. As a result, the Commonwealth’s petition to consolidate appellee’s case with theirs for trial was denied on January 19, 1982. The Commonwealth then requested that appellee’s trial be set for January 29, 1982. The defendant objected to the Commonwealth’s request, however, claiming that more time was necessary to prepare for his defense. The trial court denied the Commonwealth’s request and set the trial for March 30, 1982.

On January 28, 1982, (the last day to file pre-trial motions) appellee filed an omnibus pre-trial motion. The motion was ten and one-half pages long and, among other things, included a request to adopt motions for suppression and motions to dismiss filed by three of the alleged co-conspirators; appellee’s own motion to suppress; a motion to bar testimony of one of the alleged co-conspirators who it was believed would be a Commonwealth witness; a motion to quash on the ground of prosecutorial misconduct; a motion to dismiss raising the statute of limitations; a motion to quash claiming that the grand jury that had investígated these matters did not recommend his prosecution and other motions.

Subsequently, appellee filed a motion for the appointment of a private investigator and an expert witness to aid him in the preparation of his case. It was alleged, inter alia, that an investigator was needed to seek information involving activities that had allegedly occurred in the cities of Pittsburgh and Philadelphia, as well as the states of New Jersey and California. It was further alleged that issues had been raised regarding explosives and electronic gear that would require consultation with and testimony from experts in both fields.

On March 12, 1982, there was filed in the office of the Clerk of Courts a pro se motion by the defendant to dismiss the charges, which motion was dated March 11, 1982. The basis of appellee’s pro se motion for dismissal was the failure of the Commonwealth to bring him to trial within 120 days after his return to Allegheny County.

On March 16, 1982, the Commonwealth again filed a petition to consolidate appellee’s charges with those against the alleged co-conspirators, Gary Small and Henry Ford, which had been refiled and were set for trial. This petition for consolidation was granted by the trial court. On March 31, 1982, the Commonwealth presented a petition to extend the time for commencement of trial. Judge Cappy granted the petition and set May 3, 1982, but not later than July 20, 1982, as the time for trial. Subsequently, on July 9, 1982, defendant’s motion to dismiss the charges was granted.

Under all of the circumstances disclosed by the record, it is my opinion that due to the nature of the charges, the number of alleged conspirators involved, the multiplicity of pre-trial motions filed on appellee’s behalf, and appellee’s claim that investigation was necessary as far away as the state of California, the granting of additional time within which to bring appellee to trial was necessary. I would treat the Commonwealth’s petition of March 31, 1982, as a request for a continuance which, for all practical purposes, it was. Nor would I bar consideration of the petition merely because it was presented after the technical run date. It is to be noted that the Agreement does not contain a provision requiring that requests for continuances be presented prior to the running of the 120-day period.

One of the purposes behind the passage of the Agreement by the Legislature was the elimination of prejudice suffered by prisoners against whom detainers were lodged. Prior to the enactment of the Agreement, a prisoner’s status within the prison system was often profoundly affected by the filing of a detainer. Prisoners were often classified as escape risks or denied institutional privileges as well as trustee status. In the opinion of those that drafted the Agreement, the filing of a detainer, without an efficient and uniform system of disposing of the underlying charges, adversely affected the prisoner’s motivation to become involved in rehabilitative programs. In addition, the prisoner’s prospects for parole or executive clemency were often diminished. The Agreement, when enacted, also protected the rights of the community to effective, efficient and prompt prosecution of criminal charges. It is my opinion that discharging the appellee in this case will serve none of the foregoing purposes.

The record shows quite clearly that the appellee at no time desired to proceed to trial. While he had a right to utilize all available pre-trial techniques to prepare his case, the fact that he has done so should not be disregarded in determining whether or not more than 120 days is necessary to begin the trial. On the contrary, the record shows that the Commonwealth requested that trial be scheduled within the 120 days but the request was denied when appellee objected. The reason for the denial was that appellee required more time to prepare. Furthermore, there is not the least suggestion in the record that appellee would have been prejudiced or harmed in any way by postponing the trial for an additional 60 or 90 days. There is no suggestion, and it is not even claimed, that a reasonable period of additional time spent in Allegheny County would affect his status within the Federal prison system or deny him any significant institutional privileges. Nor is there any suggestion that his prospects for parole or other relief would be hindered.

As already indicated, this record warrants the inference that the appellee personally was aware of the 120-day run date. He was aware that the Commonwealth had miscalculated and he utilized every procedural device available to delay trial beyond the 120th day. Within two days thereafter, he executed a petition to dismiss the charges. While the purposes of the Agreement are laudable and the Agreement should be construed to carry out those purposes our courts should not permit it to be used as a trap to penalize the citizens of the Commonwealth. Rules or statutes of procedure should be utilized “in the spirit in which they were written — as rules intended to achieve an orderly and just disposition of a dispute — ....” Commonwealth v. Fin-frock, 257 Pa.Super. 555, 559-560, 391 A.2d 621, 623 (1978).

Although expressed in reference to Pa.R.C.P. 1100, the sentiments set forth in Commonwealth v. Genovese, 493 Pa. 65, 72, 425 A.2d 367, 371 (1981) apply with equal force and persuasion here. “So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.” Commonwealth v. Genevese, supra, 493 Pa. at 72, 425 A.2d at 371.

In my opinion, there has been no misconduct on the part of the Commonwealth or any effort to evade or dilute any of appellee’s rights. On the contrary, it appears to me that the system has been manipulated in this case. Since I am persuaded that neither the Agreement nor our case authority mandate appellee’s discharge, I would reverse and remand this case for trial.

      . The Commonwealth evidently calculated a 180-day rúndate pursuant to Pa.R.Crim.P. 1100 instead of a 120-day rúndate provided for in the Detainers Act.

      . Had the Commonwealth advised the lower court of the correct rúndate under the Detainers Act, the court could have set a trial date before the March 9, 1982 deadline. We, however, agree with the lower court that neither the court nor appellee was required to independently calculate the rúndate but both were entitled to rely on the official court papers.

      . The Commonwealth’s own motion to consolidate prompted appellee’s request for thirty days to review the voluminous pre-trial records of all three defendants and file appropriate pre-trial motions.

      . Because we find appellee’s request for thirty days not a "continuance,” the Commonwealth’s reliance on Commonwealth v. Mallon, 279 Pa.Superior Ct. 350, 421 A.2d 234 (1980) (appellant voluntarily waived speedy trial rights in exchange for a return to a prison he preferred in New Jersey), is misplaced.

      . Because we hold that appellee did not request a continuance that tolled the 120-day period, tolling the period for the one day following the thirty days, when the Commonwealth requested trial, would not make the Commonwealth’s petition to extend timely. Therefore, we need not address this contention.

      . Paragraph (d) of Rule 1100, as it regards the exclusion of defense-requested continuances, was specifically deleted from the present version of Pa.R.Crim.P. 1100. See Note to Pa.R.Crim.P. 1100, 1983 edition, which indicates that the change became effective on or after January 1, 1982.

      . Although the majority state that appellee was entitled to rely on the Commonwealth’s erroneous calculation of the run date, it would appear that appellee did not rely on the Commonwealth’s calculation but was well aware of the passage of time and had made his own calculation.


author: HESTER, Judge:

text:
    469 A.2d 644
    COMMONWEALTH of Pennsylvania v. Herbert TUCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1983.
    Filed Nov. 25, 1983.
    Petition for Allowance of Appeal Denied Feb. 9, 1984.

      Bonnie B. Leadbetter, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, J.
   HESTER, Judge:

In a non-jury trial, Herbert Tuck, appellant, was found guilty of voluntary manslaughter. Appellant’s conviction stemmed from an incident in which he shot and killed his concubine, Deborah Humphrey, at Latona Street in Philadelphia on April 24, 1980. Post-verdict motions were denied and appellant was sentenced to not less than five years nor more than ten years. Appellant then filed this appeal.

The first assignment of error is the trial court’s admission of two written custodial statements given by appellant to the police shortly following his arrest. Specifically, appellant argues that the suppression court erred in denying the motion to suppress the statements because appellant’s emotional and mental state at the pertinent time precluded a knowing and voluntary waiver of his Fifth and Sixth Amendment rights required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Our scope of review of the denial of a motion to suppress is well-established. The suppression court must make findings of fact and conclusions of law in determining whether the evidence obtained was in derogation of the defendant’s rights. On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of any inferences and legal conclusions drawn from the court’s findings. Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982). In determining whether the record supports the court’s findings of fact, we are restricted to reviewing the evidence presented by the Commonwealth and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Eliff, supra.

The suppression court found these facts: Following the shooting death of Deborah Humphrey on April 24, 1980, appellant was taken into police custody at approximately 5:30 p.m. and transported in a police squad car to the homicide division. Appellant was accompanied by his sister, and neither he nor his sister was handcuffed. Tuck and his sister arrived at homicide headquarters at approximately 6:00 p.mi. At approximately 6:30 p.m., appellant met with Detective English in an open area of the homicide division. English advised appellant he was going to be questioned about the shooting and gave him the requisite Miranda warnings. Appellant indicated a waiver of his Miranda rights and expressed his willingness to give a statement. Appellant gave a statement which lasted until approximately 8:30 p.m. During the course of the interview with English, appellant was alert and attentive. He did, however, frequently interrupt the interview by jumping up and exclaiming, "... tell me Debbie isn’t dead.” After each such interruption, appellant regained his composure and continued with the interview. Following the interview, appellant requested a drink of water and the- opportunity to use the bathroom. English honored appellant’s request. At approximately 8:40 p.m., appellant requested to make a telephone call to his family. Upon the granting of this request, appellant engaged in a twenty minute telephone conversation. At 9:00 p.m., appellant asked English if he could speak with his sister. English permitted appellant to privately talk with her in an interview room. During their conversation period which lasted approximately thirty minutes, English learned that a search of the crime scene had produced a gun found in the bathroom. At about 9:35 p.m., English led appellant into an interrogation room, advised him of the discovery of the gun and rewarned him of his Miranda rights. Appellant again indicated a waiver of his Fifth and Sixth Amendment rights and expressed his willingness to give a statement. During this second interview which lasted until 10:20 p.m., appellant walked about agitatedly, interrupted the questioning with several emotional outbursts, cried, and again exclaimed, “... please tell me Debbie isn’t dead.” After each such interruption, Tuck regained his composure and continued with the interview. We find ample evidence in the record to support the suppression court’s findings of fact.

Turning now to the suppression court’s conclusion of law challenged in this appeal; it found appellant’s two statements to have been given following an intelligent and voluntary waiver of his Miranda rights. This conclusion is fully supported by the following facts: though testimony by the officers at the crime scene described appellant’s emotional state as “hysterical”, the record nevertheless establishes that his sensorium was not impaired. At the crime scene, appellant exhibited no problem communicating with the officers present. He understood and followed their various instructions and voluntarily accompanied them to homicide headquarters. • Before leaving the crime scene, appellant asked for his nerve medication, thus exhibiting the presence of mind to care for his own physical well-being. During the ride to headquarters, despite being visibly upset, he repeatedly asked whether the victim was alive or dead.

At headquarters, appellant was informed by English that he was to be questioned about the Deborah Humphrey shooting. English read appellant his Miranda rights from a standard form 75-Misc.-3, Police Interrogation Card. Appellant verbally answered the seven comprehensive Miranda questions appearing on the reverse side of the form. Appellant’s responses, which were typewritten onto the interview sheet and initiated by appellant, established a knowing and voluntary waiver. Appellant then gave his first statement, a lengthy exculpatory statement to detective English which contained coherent and responsive information. Though appellant interrupted the interview at different times by exclaiming "... tell me Debbie isn’t dead”, he regained his composure and continued with the interview. English testified that appellant demonstrated a willingness to talk about the incident, was alert, and responsive.

Following the first interview, appellant requested to satisfy his biological needs and was permitted to do so. Subsequently, he requested to phone his family. This request was honored and he engaged in a normal telephone conversation with a family member for approximately twenty minutes. He also requested to speak privately with his sister and did so for about one-half hour. Prior to giving his second statement, appellant again was given his Miranda rights. In response to English’s request, appellant supplied answers to the comprehensive questions appearing in the standard police form sheet and his responses were hand-recorded in the appropriate spaces. The sheet was handed to appellant who read, initialed each of the recorded answers and signed the bottom of the sheet. Appellant’s responses established a voluntary waiver of his Miranda rights. Appellant gave a second statement to English which contradicted his exculpatory first statement. It contained coherent and responsive information. English then presented the four-page interview sheet which contained both statements to appellant and requested him to read and sign it if its contents were accurate. Appellant read each page and signed his name at the bottom of each page.

Despite appellant’s periodic outbursts during the time he gave the statements, we are convinced that appellant possessed sufficient sensorium to freely and voluntarily waive his constitutional rights. The mere fact appellant was excited and emotional following the shooting death of his girlfriend does not compel us to conclude that appellant did not know what he was doing; quite the contrary, since the record establishes that he was alert, rational, responsive and sufficiently composed to enable him to validly waive his constitutional rights prior to making the statements. Appellant understood the nature of the questioning, was advised on two occasions of his Miranda rights prior to giving the statements and responded in a manner indicating a waiver of them. See, Commonwealth v. O’Bryant, 479 Pa. 534, 388 A.2d 1059 (1978), cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). Accordingly, we affirm the suppression court’s denial of the motion to suppress since its determination that appellant intelligently and voluntarily waived his Miranda rights is amply supported by the record.

The second assignment of error is an ineffectiveness challenge to the representation provided appellant by his court-appointed trial counsel, Donald G. Joel, Esquire. The gravaman of appellant’s claim is not that trial counsel’s representation lacked any “reasonable basis designed to effectuate his client’s interest,” see Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Instead, post-verdict counsel alleges that appellant was deprived of his Sixth Amendment right to counsel because of a “complete breakdown of communication” between appellant and trial counsel (Post Trial Hearing, N.T. 3-7, 45). Specifically, appellant alleges that the trial court erred in refusing to allow Joel to withdraw when he requested to do so at the guilty plea colloquy.

A survey of the record reveals the following. After the suppression court’s ruling on appellant’s pre-trial motion to suppress, the case proceeded to jury selection. Following selection of the jury but before formal commencement of trial, appellant advised Joel that he wished to enter a guilty plea. Joel conferred with appellant and advised him against tendering the plea. Despite Joel’s advice, appellant chose to tender the plea. A guilty plea colloqy was conducted over a two-day period. Our perusal of this portion of the transcribed record indicates that Joel and appellant communicated without any indication of either hostility, mistrust or irreconcilable differences. In fact, appellant repeatedly expressed his satisfaction with Joel’s representation.

During his testimony at the colloquy, appellant stated that the deceased victim had been accidently shot when he attempted to wrestle the gun from her hand. Because of this testimony, the trial judge ordered appellant’s plea to be withdrawn and announced that the case would proceed to trial. At this point, Joel conferred with appellant and then requested the court to grant him leave to withdraw. Joel stated on the record that he did not want to further represent appellant, that he was having difficulty communicating with him and that he wanted to withdraw as counsel. Joel’s motion to withdraw was denied and as a consequence, Joel represented appellant in a bench trial.

At a post-trial evidentiary hearing before the lower court, Joel explained the actual facts and circumstances which preceded his motion to withdraw and his motives for the motion. Joel testified that appellant became emotional, fearful and confused after hearing the court order the withdrawal of the guilty plea. It was at this particular point in time, when appellant became upset, that Joel was unable to communicate to him (Post-trial Hearing, Oct. 14, 1981, N.T. 22-3, 37). Joel’s testimony at the evidentiary hearing also revealed his self-serving reasons for making the motion to withdraw.

While we in no way condone the actions or self-serving attitude of trial counsel, we do not conclude that trial counsel’s actions or attitude caused appellant to be without effective representation.

Our study of the record belies appellant’s assertion that a communication problem between him and Joel rendered Joel’s representation constitutionally inadequate. At no time during the proceedings below did appellant express that he disliked his attorney, that he distrusted him, that he was dissatisfied with counsel’s strategies or that he and his attorney had any disagreement. In fact, Joel permitted appellant to attempt to tender a guilty plea though he did not agree with the strategy. During the bench trial which commenced only two days after the motion to withdraw was made, appellant did not display a lack of confidence toward Joel or complain about the representation he was receiving. The record also demonstrates full and effective communication between appellant and Joel at trial. At trial, appellant chose not to testify on his own behalf only after a full discussion with Joel. We note further that the momentary breakdown of communication between appellant and Joel at the guilty plea colloquy had no bearing on the defense ultimately presented at trial. In fact, appellant admits that trial counsel was well-prepared and competent.

Of course, irreconcilable differences between an attorney and his client or a complete breakdown of communication between them could result in the denial of a defendant’s right to competent representation. See, Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976) (court appointed counsel and defendant agreed that an irreconcilable difference existed as to the manner in which the trial should be conducted). However, we do not consider a momentary breakdown in communication between appellant and Joel supportive of such a conclusion in this case. See, Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981); Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979). See generally, Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (Sixth Amendment right to counsel does not include right to a meaningful attorney-client relationship and therefore found no abuse of discretion in the denial of defendant’s request for a continuance where defendant’s attorney was fully prepared and ready for trial). In fact, the record establishes the absence of any evidence to support a conclusion that either hostility, irreconcilable differences or communication difficulties between appellant and Joel prevented effective representation.

The grant or denial of court-appointed trial counsel’s petition to withdraw is within the sound discretion of the trial court, see Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975), and as such, should not be overturned unless we find an abuse of discretion. Based on the foregoing, we find no abuse of discretion in the trial court’s denial of trial counsel’s motion to withdraw.

Judgment of sentence affirmed.

      . Appellant’s post-verdict counsel (present counsel) filed a notice of appeal on December 7, 1981, listing the appeal as being from Bill No. 1322, May Term, 1980, voluntary manslaughter. Appellant was also convicted on the charge of possession of an instrument of crime, Bill No. 1324 and sentenced to not less than two and one-half years nor more than five years, this sentence to run concurrent with the voluntary manslaughter sentence. This latter Bill No. 1324, instrument of crime, was not listed on appellant's notice of appeal. Post-verdict counsel filed a petition to amend the notice of appeal in April, 1983, to include Bill No. 1324. By an order entered May 17, 1983, the Superior Court granted the petition but reserved, without prejudice, the Commonwealth’s right to argue the jurisdictional propriety of the amendment at argument or in its brief. In its brief, the Commonwealth contends that since appellant’s petition to amend his notice of appeal was some 16 months after the original filing, the time for filing a proper notice of appeal has passed. We are compelled to agree. See Commonwealth v. Keys, 313 Pa.Super. 410, 460 A.2d 253 (1983), and therefore quash the appeal from Bill No. 1324, instrument of crime. However, we emphasize that the arguments raised in appellant’s brief are equally directed and applicable to each of the two separate charges. In addressing and considering appellant’s argument with respect to the voluntary manslaughter charge, we, in effect, will have addressed and considered the same grounds raised challenging the instrument of crime charge. In light of the evidence in this case and the concurrent running of the sentences imposed, we see no prejudice suffered by appellant due to the failure to file a timely petition to amend his notice of appeal.

      . Appellant’s statement was directly recorded on the typewriter. It is exculpatory in nature and stated, in part, that he and the deceased victim had lived together for about five years, that they argued frequently, that prior to the shooting they had been arguing, that he left their house after their argument, that he later returned and found her lying on the floor in the upstairs bedroom and that he carried her body from the upstairs bedroom to the hallway on the second floor.

      . Appellant’s second statement was directly recorded on the typewriter as a continuation of the first interview. It is inculpatory in nature and is as follows:
      Q. Herbert I want to inform you that a gun has been found in the bathroom on the second floor of your home will you tell me what you know about this, will you now tell me the truth as to what happened to Debbie?
      A. I was in the bedroom after I had the argument with Debbie and she came into the bedroom. I had this gun in my hand and I was playing with the clip putting it into the gun and Debbie said to me to put the gun away. Then she pushed the bed and the bed broke

        the mirror. I hollered and screamed at her, I placed the gun on top of a bannister in the hallway. Then we were pushing and shoving and she was biting my finger and I pulled away from her and I pulled the gun off of the bannister and it went off. She laid down and I called my Mother.
      Q. Was the gun cocked?
      A. No.
      Q. Whose gun is it, where did it come from, who brought it into the house?
      A. [¶]... ] gave it to me for protection, he gave it to me a couple of weeks ago and I left it in the house.
      Q. Where was Debbie when the gun went off? Where were you?
      A. We both were in the hallway.
      Q. Herbert is this the truth?
      A. Yes, sir.
      Q. Is there anything else that you want to add to this?
      A. No.
      Q. Was anyone else in the bedroom when you and Debbie were arguing and when the gun went off?
      A. No.
      Q. Herbert you will read this and if it is what you say to be the truth will you sign this to show that you have read it?
      A. Yes.

      . Sensorium is an individual’s ability to speak, hear and think clearly.

      . We note that findings of a suppression court relating to the mental competency of a defendant to waive his Miranda rights, if supported by the evidence, have been affirmed despite the presence of purported disabilities more serious then those alleged here. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977) (drug withdrawal); Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975) (low I.Q. and limited education); Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973) (paranoid schizophrenic); Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980) (serious illness during hospitalization).

      . Appellant's court-appointed trial counsel, Donald G. Joel, withdrew with leave of court at the post-verdict stage. Consequently, this claim is advanced by new post-verdict counsel.

      . Joel testified that he did not like appellant, that he did not wish to spend anymore time on the case, that he did not desire to justify his representation in a later collateral proceeding, that he experienced frustration due to his momentary inability to communicate with appellant, that he was surprised at appellant’s testimonial version which described the cause of death as accidental and that the two-day guilty plea colloquy had resulted in a waste of time and energy. (Post trial hearing, October 14, 1981, N.T. pp. 14-44).


author: PER CURIAM: WICKERSHAM, Judge,

text:
    469 A.2d 650
    COMMONWEALTH of Pennsylvania v. Mark James BLOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1983.
    Filed Nov. 25, 1983.
    Reargument Denied Jan. 26, 1984.

      David B. Dowling, Harrisburg, for appellant.
    John Thomas Robinson, District Attorney, Middleburg, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

Appellant Mark James Block appeals from the order of the Honorable A. Thomas Wilson which denied appellant’s motion to dismiss on double jeopardy grounds. We affirm.

On March 3, 1981, a complaint was filed charging appellant with theft by failure to make required disposition of funds, unauthorized use of a vehicle and misuse of a credit card. Appellant was arraigned on May 6, 1981, and on June 8, 1981, a jury was selected and sworn. Testimony was to begin on August 3, 1981. On July 17, 1981, however, the Commonwealth requested a continuance because of the unavailability of the primary witness. Appellant did not object to the continuance and the case was scheduled for October 5, 1981. At that time, appellant and his attorney appeared and selected a second jury which was sworn and directed to return for testimony on October 8, 1981. Appellant failed to appear on October 8 and a bench warrant was issued.' Appellant remained at large for nearly a year until he surrendered himself on September 14, 1982. Thereafter, having obtained new counsel, appellant filed a motion to dismiss, asserting that the selection and swearing of the second jury violated the constitutional prohibition against double jeopardy. Judge Wilson disagreed, denied the motion to dismiss, and ordered the case to trial before the original jury.

The underlying purpose of the double jeopardy prohibition is to prevent an accused from being subjected to trial and possible conviction more than once for an alleged offense. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Under double jeopardy principles, a criminal defendant has the right not to be subjected to the state’s repeated attempts at conviction, Serfass v. United States, supra, to expect that a judgment, once made, be final, and to expect that a jury, once selected and sworn, will hear his case. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). None of these rights are violated by Judge Wilson’s order that appellant be tried by the first jury selected. Cf., Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). It is illogical, and unnecessary, to grant relief when no harm has been suffered. See, e.g., Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983).

In addition, it is appropriate in this context to take into consideration the public’s “compelling interest in justice for all.” Commonwealth v. Stewart, 456 Pa. 447, 453, 317 A.2d 616, 619 (1974). An accused’s interests may, even under double jeopardy principles, be outweighed by “the competing and equally legitimate demand for public justice.” Illinois v. Somerville, 410 U.S. 458, 471, 93 S.Ct. 1066, 1074, 35 L.Ed.2d 425, 435 (1973).

Appellant argues that the swearing of the second jury caused the first jury to be discharged and that this “discharge” was the equivalent of a sua sponte declaration of mistrial. Since there was no manifest necessity for a mistrial, appellant reasons that he must be discharged. We do not believe that the inadvertent selection of the second jury, with the apparent acquiescence of appellant and his attorney, compels us to hold that the Commonwealth is forever precluded from bringing appellant to trial on these charges. Rather, we believe that the selection of the second jury should be considered a nullity and the case should proceed to trial with the first jury.

The trial court’s order denying appellant’s motion to dismiss is affirmed and the case is remanded for trial. Jurisdiction is relinquished.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

Mark James Block, appellant herein, appeals from a court order entered on October 14, 1982, by the Honorable A. Thomas Wilson, President Judge of the Court of Common Pleas of Snyder County. The order in question directed appellant to stand trial on November 11, 1982 with a jury selected on June 8, 1981. Appellant claims that the trial will violate his constitutional right against being twice placed in jeopardy for the same offense as well as his right to a speedy trial. I agree and would reverse and discharge appellant.

On March 3, 1981, a criminal complaint was filed against appellant, charging him with theft by failure to make required disposition of funds, 18 Pa.C.S. § 3927, unauthorized use of a vehicle, 18 Pa.C.S. § 3928, and misuse of a credit card, 18 Pa.C.S. § 4106. Appellant entered a plea of not guilty ' at his arraignment. On June 8, 1981 appellant, represented by counsel was present for the selection and swearing of his jury. Testimony was scheduled to commence on August 3, 1981, however, the Commonwealth’s Petition for a Continuance of Trial was granted and a new date of October 5, 1981 was substituted for testimony to begin.

On October 5, appellant and his attorney were present for the selection and swearing of a second jury. Appellant was then scheduled to appear on October 8, 1981, but failed to do so. Although a bench warrant was issued for his arrest, appellant remained at large until he surrendered to the Snyder County sheriff on September 14, 1982.

While appellant was incarcerated prior to bail being granted he was informed that a third jury would be chosen to hear his case. Subsequently, on September 28, 1982, appellant, through new counsel filed a Motion to Dismiss claiming, inter alia, a double jeopardy violation. Soon thereafter a Supplemental Motion to Dismiss was filed, again raising the double jeopardy issue and for the first time a claim of ineffectiveness of counsel was asserted. After a pre-trial hearing Judge Wilson entered an order on October 14, 1982, dismissing appellant’s motions and this appeal followed.

This appeal presents the narrow question of whether the constitutional guarantee against twice being put in jeopardy for the same offense is violated when a second jury is sworn to hear a case in which another jury has already been sworn and empaneled but has not been formally discharged. Appellant claims the first jury was discharged without manifest necessity when the second jury was sworn on October 5, 1981.

The Double Jeopardy Clause of the Fifth Amendment, which was made binding upon the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), as well as Article I, Section 10 of the Pennsylvania Constitution provide protection against being twice subjected to jeopardy for the same offense. This protection since United States v. Perez, 9 Wheat 579, 6 L.Ed. 165 (1824) has extended to defendants whose trials have neither culminated in a conviction or an acquittal. It has been determined that jeopardy attaches in a criminal trial at the swearing of the jury or the swearing of the first witness in a bench trial. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Commonwealth v. Carson, 259 Pa.Super. 183, 393 A.2d 778 (1978).

Here, jeopardy attached on June 8, 1981 when the first jury was sworn regardless of the fact that no testimony was taken at that time. The sole question to be determined is whether the swearing of another jury on October 5, 1981 without discharge of the first jury violated appellant’s constitutional rights.

Generally, double jeopardy protections guard against the state’s use of its vast resources and powers to make repeated attempts to convict a defendant thereby increasing the chance that, even though innocent, a conviction will be obtained. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). More specifically, the reason for attachment of jeopardy to the swearing of the jury “lies in the need to protect the interest of an accused in retaining a chosen jury” Crist v. Bretz, supra 437 U.S. at 35, 98 S.Ct. at 2161. The right, although not absolute, to have a trial completed by a particular tribunal is recognized as being within the constitutional protection against double jeopardy.

The Commonwealth correctly states that the principle of Double Jeopardy does not automatically prevent reprosecution of a matter once the right attaches and a second jury is empaneled and sworn. There is no question that there can be a second prosecution after a mistrial has been declared pursuant to a request from the defendant, or with his consent, or where the trial judge sua sponte makes a determination that “manifest necessity” requires such a declaration. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976).

There is no assertion by the Commonwealth that appellant requested the swearing of the second jury on October 5, 1981. Nor can there be a meritorious argument that appellant waived his claim that there was a lack of manifest necessity in swearing the second jury. The failure to object or to make a correct specific objection does not waive a claim that the declaration of a mistrial without manifest necessity was erroneous. Commonwealth v. Bartolomucci, supra, 468 Pa. at 347, 362 A.2d at 239.

During a pre-trial hearing concerning the possible selection of a third jury to hear the case Judge Wilson stated:

I must advise you that if you make the selection to be tried by the jury drawn from a different panel, the jury would then be discharged by this court; that is this second jury. This court will not do it sua sponte, will not do it on its own, and I did not in the previous jury, if you recall. However, the notes of testimony taken on that occasion will bear me out on that.... As your lawyer, I am sure, has already advised you, once a jury has been sworn to hear the case, you are then in a posture where the courts have held that this is a trial whether there is trial that follows or not, and if the jury is discharged without your consent and approval and request, that is the end of the case.

N.T., 10-4-82, at 4-5. (Emphasis added)

The problem in the present appeal is that the notes of testimony do not support this statement. The record is silent on the fate of the first jury and the reasons for selection of the second. All that can be determined is that for some unknown reason a second jury was empaneled and sworn on October 5, 1981, without mention as to the status of the jury sworn on June 8, 1981.

It is undisputed that jeopardy attaches and trial begins when a jury is sworn and empaneled or when the first witness is sworn in a bench trial. Crist v. Bretz, supra; Commonwealth v. Carson, supra. It is also well settled that once a jury is sworn the accused has a constitutional right to have his fate determined by that particular tribunal. Crist v. Bretz, supra. Appellant’s right may only be overcome by an important countervailing interest , of proper judicial administration. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). No such important interest has been advanced by the Commonwealth.

When the lower court swore the jury on June 8, 1981 jeopardy attached. The swearing of a second jury on October 5, 1981 caused the first jury to be discharged. The implied discharge was the equivalent of a sua sponte declaration of mistrial without manifest necessity; therefore, any future prosecution would violate the appellant’s constitutional right against being twice put in jeopardy for the same offense. The fact that appellant makes no showing of actual prejudice or intention of the Commonwealth to enhance the possibility of a conviction has no bearing on the issue. The Court in Illinois v. Somerville, stated: “Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar....” Id. at 471, 93 S.Ct. at 1073.

Appellant’s constitutional protection against double jeopardy was violated when the second jury was empaneled and sworn. Therefore the Commonwealth is precluded from initiating any future prosecution in this matter. The order entered on October 14, 1982 directing appellant to stand trial on November 11, 1982 should be reversed and appellant discharged.

      . An order denying such a motion is considered a final order for purposes of appeal. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977).

      . Appellant’s counsel had been appointed only four days prior to jury selection.

      . On the unusual facts of this case, there appears to be no precedent either for or against appellant’s position.

      . While it is true that the lack of a specific objection will not constitute a waiver of a particular basis for relief under double jeopardy, Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), it has also been held that a defendant cannot sit back and put the Commonwealth to the expense and time of presenting its evidence then later object to the proceeding on double jeopardy grounds. Commonwealth v. Splain, 242 Pa.Super. 503, 364 A.2d 384 (1976); see also, Commonwealth v. Dimming, 310 Pa.Super. 92, 456 A.2d 198 (1983).