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COMMONWEALTH v. CARTER (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
CARTER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1972, No. 5815, in case of Commonwealth of Pennsylvania v. Robert Carter, alias William Leslie Robertson, alias James Allen.

COUNSEL

John R. Cook, Trial Defender, with him John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs, J., concurs in the result.

Author: Van Der Voort

[ 236 Pa. Super. Page 337]

This direct appeal raises a question of the right to speedy trial. The appellant, Robert Carter, after conviction

[ 236 Pa. Super. Page 338]

    in 1972 on charges of armed robbery and receiving stolen goods, filed post-trial motions for New Trial and in Arrest of Judgment. After hearings on these motions, he was granted a new trial by an Order of the lower court dated January 15, 1974. He was not tried until May 15, 1974, when he was again convicted and sentenced. Relying upon Rule 1100 of the Pennsylvania Rules of Criminal Procedure, he now claims that he was not afforded a speedy trial. We are constrained to agree.

The record shows that the appellant was first scheduled for trial, pursuant to the January 15, 1974 Order, on February 20, 1974. The case was postponed upon the motion of the Commonwealth, due to the unavailability of the chief Commonwealth witness, a police officer. On April 15, 1974, appellant filed an Application to Quash the indictment on grounds that Rule 1100 (e) of the Pennsylvania Rules of Criminal Procedure had been violated.*fn1 Rule of Criminal Procedure 1100 (19 P.S. Appendix) was adopted June 8, 1973, pursuant to the decision in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). Until its amendment on December 9, 1974, Section (e) of that Rule provided that:

"A new trial shall commence within a period of ninety (90)*fn2 days after the entry of an order by the trial court or an appellate court granting a new trial."

The April 15, 1974 Application to Quash was denied. Although trial was scheduled for April 16, 1974, it was

[ 236 Pa. Super. Page 339]

    again postponed upon the motion of the Commonwealth, based upon the absence of the chief prosecution witness. On May 15, 1974, trial finally commenced and appellant was convicted. In post-trial motions, prior to this appeal, he again argued that the ...


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