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COMMONWEALTH v. SIMPSON (09/15/72)

decided: September 15, 1972.

COMMONWEALTH
v.
SIMPSON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 1847, in case of Commonwealth of Pennsylvania v. Donald Simpson.

COUNSEL

Francis S. Wright, Assistant Defender, with him John L. Rolfe, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Thomas M. Wochok, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 222 Pa. Super. Page 297]

Appealing from his conviction for possession of narcotic drugs, defendant raises two issues: the trial

[ 222 Pa. Super. Page 298]

    court's refusal to grant defendant a requested continuance, and the applicability of The Controlled Substance, Drug, Device and Cosmetic Act of 1972, 35 P.S. §§ 780-101 to -143 (Pa. Leg. Serv. 165 (1972)) (hereinafter the "Controlled Substance Act"). Both issues require an examination of the facts surrounding defendant's conviction.

He was arrested on November 7, 1970, when police officers saw him attempting to discard a packet of heroin. Following a preliminary hearing and indictment, arraignment was listed for December 28, 1970, but was continued until January 12, 1971, then to April 22, and finally to May 5, 1971. On the latter date defendant's case was scheduled to be tried on June 3, 1971. However, when the case was called, defendant, who had been represented by a voluntary defender since November 1970, requested more time to secure private counsel and accordingly proceedings were continued again until July 8, 1971. On that date defendant moved for another continuance, stating that his family needed more time to finish paying the fee of a privately retained attorney. The motion was denied and the denial forms the basis for one of defendant's allegations of error.

Defendant, represented by a voluntary defender, was then tried and convicted of narcotics-possession on July 8, 1971. His sentence under The Drug, Device and Cosmetic Act of 1961, 35 P.S. §§ 780-1 to -31, was 6 months to 5 years. An appeal to this Court was filed on August 9, 1971, but we remanded for the filing of post-trial motions which were argued and denied, following which defendant was resentenced to the same term of imprisonment. The present appeal was then filed on December 27, 1971.

During the pendency of the appeal the Controlled Substance Act, supra, prescribing lesser penalties for

[ 222 Pa. Super. Page 299]

    narcotics-possession, was enacted, with an effective date of June 14, 1972. In his second allegation of error defendant claims the ...


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