No. 1174 October Term 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Sec. of Philadelphia County, Imposed on Bill of Indictment No. 279, December Term, 1974.
Clarease E. Mitchell, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 163]
On this appeal from judgments of sentence for various crimes,*fn1 appellant argues that he was not tried within 90 days after he appealed a guilty verdict from the Municipal Court of Philadelphia, as required by Pa.R.Crim.P. 6013(g).*fn2
Appellant was tried twice in Municipal Court. The first trial ended in a mistrial. At the second trial, on November 15, 1974, appellant was found guilty. He appealed to the Court of Common Pleas on November 19, 1974. Thus the Commonwealth was obliged to try him again by February 17, 1975.
Trial was scheduled for January 14, 1975, but was continued to February 10, at appellant's request because there were no notes of testimony from the two Municipal Court trials. On February 10 and February 13, trial was continued because there was no jury room available.
On February 14, three days before the 90-day period was to expire, appellant filed a "petition to dismiss the indictments" on the basis of double jeopardy and Rule 6013(g). Thereupon the case was continued until February 18 "for
[ 259 Pa. Super. Page 164]
motions and trial." On February 18, however, appellant was not brought down from the state correctional institution, and the case was continued to February 19. On February 19, at appellant's request, the case was continued to March 17, but on March 17 appellant again was not brought down for trial.
On March 31 the case was transferred to a different court room. There, after discussion of appellant's petition to dismiss, the presiding judge continued the case with instructions to defense counsel to ask the judge in the first, aborted, Municipal Court trial for an opinion on the double jeopardy question, and to become more familiar with his file on the Rule 6013(g) question.
On April 14 the case was continued for reasons not evident in the record. On May 21, June 9, and June 11 appellant was not brought down for trial. On June 11 the case was returned to the calendar room, and from there was sent to Judge BONAVITACOLA, who heard ...