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COMMONWEALTH PENNSYLVANIA v. ELMER H. HUGHES (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ELMER H. HUGHES, JR., APPELLANT



No. 153 March Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at No. 1464 Criminal Division 1974.

COUNSEL

Arthur K. Dils, and Dils & Diveglia, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, Cercone, Price and Spaeth, JJ., concur in the result.

Author: Watkins

[ 251 Pa. Super. Page 67]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Dauphin County by the defendant-appellant, Elmer H. Hughes, Jr., after conviction in a non-jury trial of drawing a check without sufficient funds with intent to defraud.

This case began on June 19, 1974, when a complaint was made in regard to a check in the amount of $3165.00 that was issued by the appellant knowing that it would not be honored by the drawee. He was arrested on July 6, 1974 and indicted on October 7, 1974 and scheduled for arraignment on October 15, 1974. He failed to appear for arraignment and a capias was issued. It was learned that he was in the Harrisburg Hospital from October 31, 1974 to November 11, 1974. He was rescheduled for arraignment on January 31, 1975 and again failed to appear. The capias was not revoked until April 10, 1975 when he was formally arraigned, pled not guilty and requested trial by jury. Application for extension of time for trial and application for continuance was made on May 22, 1975 and granted by the court below because of the unavailability of judges to try the case. The Commonwealth was directed to bring the appellant to trial not later than June 6, 1975.

[ 251 Pa. Super. Page 68]

This directive was not complied with because of the trial judge situation and again on June 10, 1975, another application for continuance was filed and granted and the Commonwealth was directed to bring him to trial not later than September, 1975. On July 17, 1975, appellant waived his right to a jury trial and proceeded to trial non jury.

It was at this time when trial was called and for the first time he complained that his right to a speedy trial was violated. The court denied his petition and he was adjudged guilty and sentenced to pay a fine and make restitution.

The appellant filed a motion to dismiss under Rule 1100 of Pennsylvania Rules of Criminal Procedure on August 8, 1975. The motion was dated July 24, 1975. The record showed that it was not actually filed under August 8, 1975 more than seven days after judgment as required under Rule 1123 of Pennsylvania Rules of Criminal Procedure.

The Commonwealth contends that he failed to file post-verdict motions and therefore his complaint cannot be considered on appeal quoting 17 P.S. ยง 211.204 Pennsylvania Rules of Criminal Procedure Rule 1123, Supreme Court Rule 56.

"The making of post-verdict motions allows the trial court the first opportunity to pass upon claims of error in the proceeding before it. If that court grants the requested relief, an appeal may have been avoided; if the relief sought is denied, appellate courts will have the benefit not only of the arguments of the parties but also of the lower court's opinion on the issues raised . . . Thus, post-verdict motions promote judicial economy and the orderly administration of the appellate process. It is for these reasons that, as a rule, issues not raised by way of post-verdict motions in the trial court will not be considered on appeal. Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); See ...


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