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COMMONWEALTH PENNSYLVANIA v. ROY PAUL WARMAN (11/08/78)

decided: November 8, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ROY PAUL WARMAN, JR., APPELLANT



No. 799 April Term, 1977, Appeal from the Judgment of Sentence Imposed on May 11, 1977, by the Court of Common Pleas of Somerset County, Criminal Division, at Nos. 402, 425, 426, 464-467 of 1975.

COUNSEL

Wilbert H. Beachy, III, Assistant Public Defender, Somerset, for appellant.

Frederick F. Coffroth, District Attorney, Somerset, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 260 Pa. Super. Page 132]

Following a non-jury trial on September 2, 1976, appellant was convicted of burglary,*fn1 theft,*fn2 and receiving stolen property.*fn3

[ 260 Pa. Super. Page 133]

Appellant's post-trial motion in arrest of judgment was denied. On May 11, 1977, appellant was sentenced to serve not less than 3 nor more than 7 years imprisonment on each of the offenses for which he was convicted, sentences to run concurrently. Appellant was also sentenced to pay the costs of prosecution, and to make restitution of his fair share of the stolen or damaged property in each case.

On appeal, appellant contends that his right to a apeedy trial under Pa.R.Crim.P. 1100 had been violated. We disagree, and affirm the judgment of the lower court.

Facts important to our consideration of the instant case are as follows. Complaints were filed against appellant on November 10, 1975, charging him, together with Sandy Ann Stillwagon and Edward Lee Miller, with the September, 1975 burglary of a private residence in Waynesboro, Pennsylvania, and theft of the contents therein.

The initial trial date set in this case was February 24, 1976. Prior to this time, the Commonwealth was aware of appellant's incarceration in the state correctional institution at Huntington, Pennsylvania. On February 17, 1976, a Petition to Return Defendant was filed, and on that same day, an order granting that petition was entered. Upon contacting the Huntington authorities, the Sheriff of Somerset County was informed that appellant had been transferred to the Allegheny County Prison in order to stand trial for criminal charges outstanding there. The Sheriff was then advised by the Allegheny County authorities that trial there was to begin shortly, and that he would be notified as soon as appellant became available. Unbeknownst to the Commonwealth, the charges in Allegheny County had been postponed on February 19, 1976, until March 24, 1976.

On February 24th, the day the case was to come to trial in Somerset County, the Commonwealth notified the lower court of appellant's incarceration in Allegheny County. Upon the Commonwealth's motion, the case was continued to ...


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