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COMMONWEALTH PENNSYLVANIA v. ELMORE E. MARTIN (07/14/78)

decided: July 14, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ELMORE E. MARTIN, APPELLANT (TWO CASES)



Nos. 405 and 426 January Term 1976, Appeals from the Judgments of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at Nos. 1423 - 1427 May Sessions 1974

COUNSEL

David E. Auerbach, Robert F. Pappano, Asst. Public Defenders, Chester, for appellant.

Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Division, Vram Nedurian, Jr., Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., files a dissenting opinion.

Author: Eagen

[ 479 Pa. Page 611]

OPINION OF THE COURT

Elmore E. Martin was tried before a jury in the Court of Common Pleas of Delaware County and was found guilty of voluntary manslaughter, possession of instruments of crime, and crimes committed with a firearm. Post-verdict motions were filed and subsequently denied. Judgment of sentence of three to six years imprisonment was imposed on the manslaughter conviction and judgments of sentence on the other convictions were suspended. These appeals followed.*fn1

Martin argues the trial court erred in denying his application to dismiss the charges with prejudice on the ground the

[ 479 Pa. Page 612]

Commonwealth failed to commence trial within the mandatory period of Pa.R.Crim.P. 1100. Inter alia, Section (f) of Rule 1100 provides:

"At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated." [Emphasis added.]

Section (b) of Rule 1100 provides:

"For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge ...


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