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COMMONWEALTH PENNSYLVANIA v. DONALD KOLLOCK (02/18/77)

decided: February 18, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD KOLLOCK, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at T.D., C.S., No. 894, August, 1974. No. 1850 October Term, 1975.

COUNSEL

David Weinstein, Philadelphia, for appellant.

Maxine J. Stotland, Philadelphia, with her Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

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

Author: Price

[ 246 Pa. Super. Page 18]

On March 14, 1975, the appellant was convicted by a jury of robbery.*fn1 Timely post-trial motions were denied by the court below, and sentence was imposed. The appellant now questions the propriety of his conviction, raising several allegations of error. We affirm the judgment of sentence.

The appellant first contends that the lower court erred by granting the prosecution an extension of time*fn2

[ 246 Pa. Super. Page 19]

    for commencement of trial pursuant to Pa.R.Crim.P. 1100(c).*fn3 The prosecution predicated its petition upon a claim that trial could not be commenced within 180 days from the date the criminal complaint was filed against the appellant, as required by Pa.R.Crim.P. 1100(a)(2),*fn4 because of unavailable court space. In two recent cases, Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976) and Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Pennsylvania Supreme Court ruled that a reasonable and limited extension of time may be granted the prosecution on the basis of judicial delay. The court, however, cautioned that Rule 1100 may not be ". . . circumvented by unwarranted grants of extensions," Mayfield, supra, at 221, 364 A.2d at 1349, and explained that the lower court may grant an extension under Rule 1100(c) only upon a record showing: (1) that the prosecution filed its application for an extension of time prior to the expiration of the mandatory period prescribed in the Rule or in a previous order granting an extension; (2) that the prosecution has exercised due diligence in bringing the accused to trial; and (3) ". . . certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided." Mayfield, supra, at 222, 364 A.2d at 1349.

[ 246 Pa. Super. Page 20]

Following the Mayfield-Shelton guidelines, we find that the prosecution's petition for an extension of time was properly granted by the lower court. The record establishes that the petition was filed prior to the expiration of the prescribed period. The complaint was filed against the appellant on August 3, 1974. On January 30, 1975, or 180 days after the filing of the complaint, the prosecution timely filed its petition for extension.

On January 30, 1975, after a hearing, the court below granted the prosecution's petition and ordered that the case be tried upon the completion of two other cases then before the trial judge, but in no event later than February 13, 1975. The lower court found that the prosecution was ready to proceed to trial, but was unable to do so solely because no courtroom was available. The lower court also found that the case had been continued on two prior occasions for this same reason. The lower court's findings are amply supported by the record.*fn5 Also, it is clear from the lower court's order granting the prosecution an extension of time that the case was scheduled for the earliest possible date. We find, therefore, no merit to the appellant's contention that the lower court improperly granted the prosecution's petition for extension.

The appellant also contends that his right to a speedy trial pursuant to Rule 1100 was violated because trial did not begin within the two week period prescribed by the lower court order granting an extension. The docket entries, however, show that the prosecution filed a petition seeking a further extension ...


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