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COMMONWEALTH PENNSYLVANIA v. GEORGE ALVIN CORBIN (08/15/79)

August 15, 1979

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE ALVIN CORBIN, JR., APPELLANT



NO. 736 ARRIL TERM, 1978, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Clearfield County, at No. 77-610-CRA.

COUNSEL

Benjamin Spencer Blakley, III, Clearfield, for appellant.

Laurance B. Seaman, Clearfield, for Commonwealth, appellee.

Van der Voort, Spaeth and Montgomery, JJ. Spaeth, J., concurs in the result.

Author: Van Der Voort

[ 268 Pa. Super. Page 528]

On or about April 29, 1977, eight complaints were filed charging the appellant, George Alvin Corbin, Jr. with forgery, receiving stolen property and criminal conspiracy. The District Attorney's Office of Clearfield County subsequently decided to prosecute the appellant on three counts of forgery, three counts of receiving stolen property and three counts of criminal conspiracy, such charges to be prosecuted in three separate cases. The appellant was brought to trial on September 21, 1977 on one count of forgery, one count of receiving stolen property and one count of criminal conspiracy. During the course of this trial, a witness for the Commonwealth, Detective Hays of the Pittsburgh Police Department, testified that he knew that the appellant was wanted by the Parole Board in Allegheny County. At this point, the appellant's attorney objected, and his objection was sustained. He then asked for a mistrial, and that request was denied. Subsequently, appellant's attorney filed post-trial motions alleging the trial court erred in denying the mistrial. The post-trial motions were denied by the lower court on May 18, 1978.

On November 14 and 15, 1977, appellant was tried again on a second series of charges, and again convicted of forgery,

[ 268 Pa. Super. Page 529]

    receiving stolen property and criminal conspiracy. On November 15, 1977, the District Attorney's Office of Clearfield County, Pennsylvania, filed a petition for extension of time beyond 180 days, as provided in Rule 1100 of the Pennsylvania Rules of Criminal Procedure, for the third series of charges, averring that prejudice would result to the appellant if he was tried by the same jury panel that had convicted him in the prior criminal matter. The District Attorney's Office at that time was prepared for trial as was the appellant. At the time of the filing of the petition for extension of time by the District Attorney's Office of Clearfield County, the appellant's attorney vigorously opposed the District Attorney's petition for extension of time and expressed his intention of waiving all objections he may have had concerning the prejudice of the jury panel. The lower court granted this extension of time, and trial was scheduled to commence on the final forgery, receiving stolen property and criminal conspiracy counts on January 23, 1978.

Prior to the commencement of the January term of Criminal Court, appellant's attorney filed a timely motion to dismiss under Rule 1100 of the Pennsylvania Rules of Criminal Procedure, averring that more than 180 days had elapsed from the filing of the complaint, and that the trial court erred in granting the extension of time from the November term of court. The lower court denied appellant's motion for dismissal under Rule 1100, and appellant went to trial and was found guilty on January 23, 1978. Timely post-trial motions for a new trial and arrest of judgment were filed by appellant on all three sets of convictions. The post-trial motions were denied by the lower court and sentence imposed.

Appellant has appealed to this court.

Defendant's counsel has filed a brief arguing two points:

1. That the court erred in refusing a mistrial after the prosecution witness's volunteered comment that "I had knowledge that George was wanted by the Parole Board, in Allegheny County."

[ 268 Pa. Super. Page 5302]

. That the court erred in not dismissing the third group of charges for violation of Rule 1100.

Defendant has also filed a brief pro se claiming ineffective assistance of counsel.

We will consider each in the order listed above.

1. The reference to defendant's being wanted by the ...


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