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COMMONWEALTH PENNSYLVANIA v. CURTIS KELLY (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
CURTIS KELLY, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 737-739, November Session, 1973. No. 249 October Term, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 246 Pa. Super. Page 200]

This is yet another case which concerns a violation of Pa.R.Crim.P. 1100.*fn1 The record indicates that the appellant was arrested and charged on October 14, 1973, for various serious crimes,*fn2 the nature of which are unimportant for the purpose of this decision. The events that followed appellant's arrest, however, illustrate a failure on the part of the prosecuting authorities in Philadelphia to bring the appellant to trial within the 270 day limit prescribed by the rule.*fn3

Initially, we note that we must reject the manner in which the appellant and the Commonwealth have framed the Rule 1100 issue in this case. As our Supreme Court stated in Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), (Eagen, J., 1976), Rule 1100 is not worded in terms of "charging" either the Commonwealth or the accused with periods of delay. (at 8, 364 A.2d 694). The analysis that is required to be made by a lower court when faced with a motion to dismiss because of an alleged violation of the prompt trial rule, or by an appellate court on review, must be within the framework

[ 246 Pa. Super. Page 201]

    and terminology of the Rule itself. Two exclusions are provided in subsection (d) of Rule 1100:

"(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:

"(1) the unavailability of the defendant or his attorney;

"(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded."

Subsection (c) further provides for extensions of the mandatory period upon application by the Commonwealth where despite due diligence by the Commonwealth trial cannot be commenced within the temporal limitations of the Rule. We must therefore determine, when evaluating the multitude of delays that existed in this case, only whether each delay is one that is properly excluded under subsection (d) or was remedied by a timely application for an extension by the Commonwealth ...


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