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COMMONWEALTH PENNSYLVANIA v. GERALD JOHNSON (12/22/78)

decided: December 22, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD JOHNSON, A/K/A MELVIN YANCEY, APPELLANT



No. 1910 October Term 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Delaware County Criminal Division, as of Nos. 1766-1771, 1774, Dec. 1974 per Homer L. Kreider, Specially Presiding.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Chester, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

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

Author: Spaeth

[ 261 Pa. Super. Page 329]

On October 12, 1974, appellant was arrested, and a complaint was filed charging him with numerous offenses stemming from an armed robbery. Appellant's sole contention on appeal is that his trial was not timely as required by Pa.R.Crim.P. 1100.

Under Rule 1100(a)(2), appellant should have been tried within 180 days of the complaint, or by April 10, 1975, unless the Commonwealth was granted an extension of time under Rule 1100(c), or unless under Rule 1100(d) time could be excluded from the 180-day period.

There are various discrepancies in the factual accounts of appellant, the Commonwealth, and the lower court's opinion as to what happened, especially between October 12, 1974, when the complaint was filed, and February 14, 1975, when the grand jury approved the indictments.*fn1 The record, regrettably, does not enable us to resolve these discrepancies. However, we find that in any case appellant's argument has no merit if the Commonwealth's petition to extend, timely filed on April 4, 1975, was properly granted. (The extension was for 90 days, or until July 9, 1975, which was well beyond the actual trial date of June 18, 1975.)

On April 4, the same day the petition to extend was filed,*fn2 a rule was granted upon appellant to show cause why the extension should not be granted. Appellant's counsel was

[ 261 Pa. Super. Page 330]

    before the court that day.*fn3 On April 9 the court entered an order that "a hearing for the above Defendant be held on April 11, 1975." When appellant and his counsel did not appear on April 11, the court entered an order saying that the Commonwealth "had proved that said application was served on defendant;" that the court had "considered all the evidence;" and that it was granting the extension.

Ordinarily, appellant's failure to contest the petition to extend would mean he has waived his right to contest the extension on its merits. Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977); Commonwealth v. Wareham, 256 Pa. Super. 23, 389 A.2d 581 (1978); Commonwealth v. Burton, 246 Pa. Super. 498, 371 A.2d 946 (1977). However, in Commonwealth v. Wareham, supra, and Commonwealth v. Jones, 258 Pa. Super. 50, 391 A.2d 667 (1978), we held that no such waiver should be found absent evidence that the defendant had notice of the petition to extend and of the time of the hearing on the petition. In those cases, since the record had no such evidence, we remanded to the lower courts to find out if notice had been given.

Here, the lower court found that appellant had been given notice of the petition to extend ("said application was served on defendant"), but there is no evidence, or finding, that he was given notice of the time of the April 11 hearing. In these circumstances it might seem proper to remand for a ...


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