decided: November 17, 1978.
COMMONWEALTH OF PENNSYLVANIA
JOHN C. SMITH, APPELLANT
Appeal No. 879 April Term, 1977, from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Fayette County, at Criminal Action No. 745 of 1975; Munson, Judge.
Simon B. John, Assistant Public Defender, with him Thomas P. Ruane, Jr., Public Defender, Uniontown, for appellant.
Gerald R. Solomon, District Attorney, Uniontown, submitted a brief for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting statement in which Price, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.
Author: Per Curiam
[ 260 Pa. Super. Page 318]
Judgment of sentence as to criminal conspiracy and theft by receiving stolen property is vacated; the conviction and judgment of sentence as to unlawful taking or disposition is affirmed.
SPAETH, Judge, dissenting:
Since 41 days elapsed between the complaint and appellant's first escape, and 159 days between his return to Allegheny County Prison and the motion to dismiss, we should order appellant discharged. See Commonwealth v. Cunningham, 247 Pa. Super. 302, 305 & id., n. 1, 372 A.2d 473, 474 & id. n. 1 (1976). Cf. Commonwealth v. Porter, 251 Pa. Super. 346, 350-351 & id. n. 2, 380 A.2d 812, 814 & id. n. 2 (1977) (defendant's incarceration in county prison if unknown could have been determined by due diligence); Commonwealth v. Woodson, 248 Pa. Super. 545, 547, 375 A.2d 375, 375-76 (1977) (no due diligence shown where bench warrant issued for defendant who was incarcerated in county prison).
[ 260 Pa. Super. Page 319]
But cf. Commonwealth v. Clark, 248 Pa. Super. 184, 188 & id. n. 5, 374 A.2d 1380, 1382 & id. n. 5 (1977) (defendant who was in county prison may have been unavailable where he received notice of scheduled trial but did not inform anyone of his need to appear).
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