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COMMONWEALTH PENNSYLVANIA v. GORDON I. WADE (07/06/79)

decided: July 6, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GORDON I. WADE, APPELLANT



No. 66 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. 7700045A

COUNSEL

Richard H. Martin, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Kathryn Lease Simpson, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., files a concurring opinion which Manderino, J., joins. Nix, J., files a concurring opinion. Eagen, C. J., concurs in the result. Larsen, J., dissents.

Author: O'brien

[ 485 Pa. Page 456]

OPINION OF THE COURT

Appellant, Gordon I. Wade, was convicted of murder of the first degree for the strangulation slaying of Donna Murphy. Post-verdict motions were denied and appellant was sentenced to life imprisonment. This direct appeal followed.

Appellant first claims that the trial court erred in refusing to discharge him because of the Commonwealth's alleged noncompliance with Pa.R.Crim.P. 1100. We do not agree.

Appellant was arrested on December 16, 1976, with the one hundred eighty day period called for in Rule 1100 expiring on June 14, 1977. Trial was originally scheduled to commence on April 18, 1977. On April 5, 1977, appellant filed an application for continuance, alleging that further medical and psychological testing was necessary to prepare his defense. The application was granted and a new trial date of July 11, 1977, was set.

On April 6, 1977, the Commonwealth petitioned for an extension of time, alleging that despite all due diligence, the Commonwealth would be unable to try appellant by June 14, 1977. On April 19, 1977, the court below granted the Commonwealth's petition, setting the trial date at July 11, 1977, but not later than September 12, 1977.

[ 485 Pa. Page 457]

On July 11, 1977, a hearing was held on appellant's motion to suppress. On July 14, 1977, the Commonwealth sought to have appellant committed to Mayview for psychological examination. Appellant agreed to the commitment, but objected to any postponement of his trial. He was committed to Mayview State Hospital for a period not to exceed sixty days for further psychological testing.

The Commonwealth, on July 15, 1977, filed a second petition to extend time, which was granted, with trial set for September 12, 1977, but not later than October 17, 1977. Prior to commencement of trial on September 12, appellant orally moved for a dismissal of the charges because of an alleged violation of Rule 1100. The trial court denied the motion and the case proceeded to trial.

We believe appellant was properly tried in accordance with Rule 1100. As a portion of the rule states:

"At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced." Pa.R.Crim.P. 1100(c) (Emphasis added.)

In the instant case, the Commonwealth, on April 6, filed a petition for extension of time, alleging that despite all due diligence, appellant would not be tried within the 180-day period prescribed by Rule 1100. The court below agreed with the Commonwealth and ordered that trial be held on July 11, 1977, but not later than September 12, 1977. Appellant's trial did, in fact, commence on September 12. Thus, if the court properly granted the Commonwealth's petition for extension of time, appellant was tried in compliance with Rule 1100.

[ 485 Pa. Page 458]

In its petition to extend time, the Commonwealth cited appellant's continuance which was granted until July 11, 1977, as the reason for being unable to try appellant within the 180-day period. After the continuance was granted, it was impossible to bring appellant to trial within 180 days, so the court below properly granted the petition for extension of time. In the order, the court held that trial was to commence "no later than September 12, 1977." As appellant's trial was commenced within the time called for in the order extending time for trial, we find no violation of appellant's Rule 1100 rights.

Appellant next challenges the proceedings whereby the court below refused to certify that appellant should be tried as a juvenile. Appellant's attack is three-pronged. He first argues that the Juvenile Act,*fn1 by excluding the crime of murder from the original jurisdiction of juvenile court, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. He further contends that the act, by failing to include adequate standards as to when a juvenile murder case may be transferred to juvenile court, denies him due process under the Fourteenth Amendment. Appellant finally argues that he presented sufficient evidence to require the court to transfer the case to juvenile court. We find no merit in any of these arguments.

The applicable sections of the Juvenile Act provide:

"§ 50-303:

"If it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this act shall immediately become applicable, and the judge shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the Family Court Division or to a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. If it appears to the court in a criminal proceeding

[ 485 Pa. Page 459]

    charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this act applied. The defendant shall be taken forthwith to the probation officer or to a place of detention designated by the court or released to the custody of his parent, guardian, custodian, or other person legally responsible for him, to be brought before the court at a time to be designated. The accusatory pleading may serve in lieu of a petition otherwise required by this act, unless the court directs the filing of a petition.

"If in a criminal proceeding charging murder the child is convicted of a crime less than murder, the case may be transferred to the Family Court Division or to a judge assigned to conduct juvenile hearings for disposition." Act of December 6, 1972, P.L. 1464, § 7, 11 P.S. § 50-303 (Supp.1978-79).

"§ 50-325:

"(a) After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this State, the court before hearing the petition on its merits may rule that this act is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the trial or criminal division or to a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if:

"(1) The child was fourteen or more years of age at the time of the alleged conduct; and

"(2) A hearing on whether the transfer should be made is held in conformity with this act; and

"(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing; and

"(4) The court finds that there is a prima facie case that the child committed the delinquent act alleged, and the court finds that there are reasonable grounds to believe that: (i) the child is not amenable to treatment, supervision

[ 485 Pa. Page 460]

    or rehabilitation as a juvenile through available facilities, in determining this the court may consider age, mental capacity, maturity, previous record and probation or institutional reports; and (ii) the child is not committable to an institution for the mentally retarded or mentally ill; and (iii) the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult.

"(b) The transfer terminates the applicability of this act over the child with respect to the delinquent acts alleged in the petition.

"(c) The child may request that the case be transferred for prosecution in which event the court may ...


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