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COMMONWEALTH PENNSYLVANIA v. EARL DEMBY (02/16/79)

decided: February 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EARL DEMBY, APPELLANT



No. 853 October Term 1977, Appeal of the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment Nos. 473, 475, 478, 479, 480, 482, May Sessions, 1975.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Div., Leonard Sosnov, Assistant Defender, Philadelphia, for appellant.

Michael R. Stiles, Assistant District Attorney, Chief, Appeals Div., Philadelphia, for Commonwealth, appellee.

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

Author: Per Curiam

[ 264 Pa. Super. Page 440]

OPINION

Appellant appeals his convictions of burglary, conspiracy, and robbery on the basis of alleged violations by the Commonwealth of Rule 1100 of the Pennsylvania Rules of Criminal Procedure.

The procedural history of this case can be summarized as follows. A criminal complaint was filed on March 22, 1975 charging appellant with robbery, assault, conspiracy, and weapons offenses. Appellant was arrested on March 24, 1975 and his preliminary hearing was scheduled for April 2. The case was continued from April 2 until April 9 because appellant's appointed counsel withdrew from the case and new appointed counsel was sought. The case was continued twice more from April 9 to April 16 and from April 16 to April 23 because appellant's newly appointed counsel was engaged elsewhere. On April 23, counsel entered his appearance and appellant waived his preliminary hearing.

The original run date under Rule 1100 was September 18, 1975. The continuances of April 2 to April 23 extended the run date to October 9, 1975, as explained below.

The case was listed for a July 30 trial. On that date a continuance was granted to appellant due to the vacation of a co-defendant's attorney. On August 27 appellant requested another continuance. Both sides answered ready on September 10 and the case was assigned to "back-up". On October 6, 1975 the Commonwealth filed its petition for

[ 264 Pa. Super. Page 441]

    extension. The hearing thereon was continued so that the Commonwealth could file amended petitions, which they did on October 15, 1975. Judge Julian King denied the amended petitions after hearings which were held on October 21, 1975. On October 23, the Commonwealth petitioned Judge King for a reconsideration which was granted subsequent to an ex parte hearing of which our defendant had no notice. After another hearing on the petition to void the order, the case was transferred to Judge Stanley Greenberg for new hearings on the petition for an extension of the date on which to commence trial. On January 6, 1976, Judge Greenberg granted the Commonwealth an extension until January 15, 1976. January 15 was Martin Luther King Day and the courts were closed. Judge Berel Caesar began hearings on Motions to Suppress Evidence which were listed for the time of trial on January 16, 1976. The trial proper commenced on January 27, 1976, and appellant was subsequently convicted of burglary, conspiracy, and four counts of robbery. Post-verdict motions were denied on December 24, 1976 and appellant was sentenced on January 17, 1977 to five concurrent 7-20 year terms and one concurrent 2 1/2 to 5 year term.

The question presented by this appeal is whether appellant's right to a speedy trial was violated by the Commonwealth's failure to comply with the requirements of ...


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