No. 243 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 4271.5-76.
Van Weiss and George B. Ditter, Assistant Public Defenders, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 480]
This is an appeal from appellant's conviction for violation of the Controlled Substance, Drug, Device and Cosmetic Act and for criminal conspiracy. For the reasons set forth below, appellant's conviction must be affirmed.
The record indicates that on June 8, 1976, undercover Officer Timothy Woodward of the Pennsylvania Bureau of Drug Control was introduced to appellant by another undercover agent for the Bureau of Drug Control, Agent Joseph Amato. Shortly thereafter, on June 18, 1976, Officer Woodward
[ 260 Pa. Super. Page 481]
met appellant at an apartment in Whitpain Township, Montgomery County, Pennsylvania, where appellant sold Officer Woodward ten packets of heroin in exchange for $80.00. The actual sale took place at 7:15 P.M. inside the apartment in question; while outside, an accomplice of appellant's, John McManus (a/k/a John North) waited. After the purchase, Officer Woodward left the premises and sealed the packets of heroin inside an envelope which he labeled. Later, at the police department Officer Woodward locked the envelope inside his police locker until 9:00 A.M. the next day, at which time the envelope was turned over to another agent of the Bureau, Agent Shirley Groff. Agent Groff turned the envelope over to the Philadelphia Police Crime Lab for analysis. This analysis showed that the packets bought from appellant did indeed contain heroin.
Appellant raises numerous issues in his appeal. First appellant argues that the lower court erred by not granting appellant's motion to dismiss under Pennsylvania Rule of Criminal Procedure 1100(a)(2), which requires that all criminal trial commence within 180 days from the date the complaint is filed. In the instant case, the criminal complaint was filed on October 7, 1976, but appellant's trial did not commence until April 6, 1977, 181 days from the date of the complaint. Nevertheless, appellant's argument is unsound.
Pa.R.C.P. 1100(c) allows for an extension of the time for trial if the Commonwealth files a petition in which it is shown that trial cannot commence within 180 days, despite due diligence by the Commonwealth. On March 28, 1977 such a petition was timely filed by the Commonwealth (180 days would expire as of April 5, 1977). In that petition, the Commonwealth explained that the instant case was originally called for pre-trial motions on March 14, 1977, but on that date, appellant made an unexpected motion to sever from the trial several other unrelated informations. Appellant's motion was granted and appellant was then tried on those other charges on March 15 through March 17, 1978. Due to the delay caused by appellant's requested severance, the lower court granted the Commonwealth's petition for an
[ 260 Pa. Super. Page 482]
extension of time and rescheduled the trial on the instant charges for April 6, 1977. Since the Commonwealth complied with the provisions of Rule 1100 in securing a valid extension of time this rule was not ...