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COMMONWEALTH v. WADE (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
WADE, APPELLANT



Appeal from judgment of Court of Common Pleas of Chester County, No. 205 C of 1974, in case of Commonwealth of Pennsylvania v. C. Alton Wade.

COUNSEL

J. Graham Andes, Assistant Public Defender, and John R. Merrick, Public Defender, for appellant.

Vincent M. Dadamo and Timothy H. Knauer, Assistant District Attorneys, and William H. Lamb, District Attorney, for Commonwealth, appellee.

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

Author: Hoffman

[ 240 Pa. Super. Page 455]

Appellant contends that he is entitled to discharge because the Commonwealth failed to bring him to trial within the period required by Rule 1100, Pa.R.Crim.P.*fn1

On October 3, 1973, appellant was arrested and charged with receiving stolen property.*fn2 The following day, appellant was brought before District Justice Robert G. Mull of Chester County for a preliminary arraignment. Appellant was not represented by counsel at that time, but indicated that he intended to retain Fred T. Cadmus, III, Esquire, to defend him. The District Justice did not fix a time for a preliminary hearing;*fn3 instead, he asked appellant to have Mr. Cadmus contact him in order to arrange a date for the preliminary hearing. During the next month, the District Justice was not contacted by either appellant or Mr. Cadmus. Finally, on November 7, 1973, the District Justice contacted Mr. Cadmus who advised him to "go ahead and set the hearing." As a result of that

[ 240 Pa. Super. Page 456]

    conversation, the District Justice scheduled the preliminary hearing for December 6, 1973.

According to the testimony of the District Justice, Mr. Cadmus requested that the preliminary hearing be continued until January 15, 1974, and subsequently requested a further continuance until February 1, 1974; both requests were granted. Trial was scheduled for September 11, 1974.*fn4 Prior to trial, however, appellant filed a motion to dismiss pursuant to Rule 1100(f). The lower court held an extensive hearing and denied the petition. Appellant was then tried and convicted. This appeal followed.

The complaint was filed on October 3, 1973, and the trial commenced on September 10, 1974. Thus, 341 days elapsed. The lower court concluded, however, that 72 of those days were chargeable to appellant. According to the lower court's calculations, therefore, trial was commenced on the 269th day of the period. The court's decision is based on three separate findings that appellant was responsible for some portion of the delay. If any of those findings are incorrect, appellant must be discharged.

First, the court held that 28 days of the period from December 6, 1973, to February 1, 1974, must be excluded. If the testimony of the District Justice is credited, this entire delay was occasioned by requests for continuances by appellant's attorney. Rule 1100(d)(2) provides that if the defendant or his attorney requests a continuance in excess of 30 days, the period beyond the thirtieth day shall be excluded. Thus, the court properly excluded 28 days from the period.

Second, the court held that appellant was tried on the homicide charge during the period, and that the trial consumed ten days. ...


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