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COMMONWEALTH PENNSYLVANIA v. TRUMAN WILSON (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
TRUMAN WILSON, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 1203 April Term, 1974. No. 1454 October Term, 1975.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, Willow Grove, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Price, J., files a concurring opinion.

Author: Cercone

[ 245 Pa. Super. Page 226]

On January 31, 1975, appellant was convicted by a jury of violating the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 A timely motion in arrest of judgment was refused by the lower court, and sentence was pronounced. Appellant now questions the propriety of this conviction, raising several allegations of error. After careful review, we reject the appellant's contentions, and affirm the judgment of sentence.

On March 21, 1974, a written complaint was filed against appellant charging him with selling a quantity of the controlled substance methamphetamine (speed) to an

[ 245 Pa. Super. Page 227]

    undercover agent of the Pennsylvania State Police on two separate occasions. On June 10, 1974, a Grand Jury returned two bills of indictment against appellant, each charging him with possession and sale of a controlled substance. Although the case was listed for trial on October 7, 1974, trial was not held at that time because of the backlog of criminal cases in the court below. On November 27, 1974, the Commonwealth filed a timely petition for an extension of time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c).*fn2 In its petition, the Commonwealth asserted that it had exercised due diligence in bringing appellant to trial, attributing the responsibility for the delay to the judiciary. On December 9, 1974, the appellant filed an answer to the Commonwealth's petition for extension of time, asserting that the Commonwealth had not exercised due diligence in prosecuting the case and requesting that the extension be denied "and the indictment dismissed for want of prompt prosecution."*fn3 On December 20, 1974 the lower court, after a hearing on the record, granted the Commonwealth an extension of time and trial commenced on January 31, 1975. With this extension, appellant's trial commenced 45 days beyond the 270 day period contained in Rule 1100(a)(1).

Appellant first contends that his right to a speedy trial was denied in that he had not been brought to trial within 270 days from the date the criminal complaint was filed against him. We disagree. In the opinion filed by

[ 245 Pa. Super. Page 228]

    the court below, Judge Lowe related the positions as presented by both appellant and the Commonwealth, and concluded:

"Clearly, the Commonwealth did not procrastinate in obtaining the defendant's indictments, nor did it solicit or request a continuance at any time. The Commonwealth's swift action afforded the administrative arm of this Court more than six months during which it could schedule a trial that would comport with Rule 1100. The case would have been tried on the 200th day had it not fallen victim to this county's prodigious criminal caseload. Nevertheless, it is significant that the Commonwealth's petition seeking a time extension was filed as soon as it became apparent that the schedule prescribed by Rule 1100 could not be satisfied. The petition was filed well before 'the expiration of the period for commencement of trial' as mandated by the Rule. ...


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