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COMMONWEALTH PENNSYLVANIA v. ANTHONY LOWERY (09/21/79)

filed: September 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY LOWERY, APPELLANT



Nos. 106 and 107 Special Transfer Docket Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia, at Nos. 1187, 1188 and 1189 October Term, 1975

COUNSEL

Leonard S. Wissow, Philadelphia, for appellant.

Paul S. Diamond, Assistant District Attorney, Philadelphia for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 270 Pa. Super. Page 3]

Appellant, Anthony Lowery, was convicted by a jury of voluntary manslaughter, possession of instruments of crime and conspiracy for the September 27, 1975, gang-related stabbing death of Craig Odom in North Philadelphia. Post-verdict motions were denied and appellant was sentenced to respective prison terms of three to ten years, two to five years, and three to ten years, all sentences to run concurrently. This direct appeal followed.

Appellant first argues the trial court erred in denying his motion to dismiss the charges against him as required by Pa.R.Crim.P. 1100. The facts are as follows.

On March 31, 1976, the court granted the Commonwealth an extension of time to try appellant until April 20, 1976. On April 13, 1976, a suppression motion concerning an in-court identification, which had been reserved for time of trial, was called for a hearing. The Commonwealth, however, was not ready to proceed and the hearing was continued until April 15. Nonetheless, appellant was arraigned and a jury was selected on April 13. On April 19, the court granted appellant's motion to suppress the in-court identification. At the Commonwealth's request, the jury selected on April 13 was dismissed before it was sworn so that the Commonwealth could appeal the suppression court's order. On April 21, over appellant's objection, the court extended time for trial until sixty days after decision by the Supreme Court on the suppression question.

The Commonwealth evidently chose not to file its appeal. On June 15, 1976, appellant filed a motion to dismiss for failure to try him within the time period called for by Rule 1100. The motion was denied and appellant was tried and found guilty of voluntary manslaughter, possession of instruments of crime and conspiracy.

Appellant argues the Commonwealth's petition to extend time, filed on April 21, 1976, was presented after the time for commencement of trial under Rule 1100 had already run. In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976),

[ 270 Pa. Super. Page 4]

    the court held an application for extension of time under Rule 1100(c) must be filed prior to the expiration of the mandatory period for trial. We nonetheless believe this claim has been waived.

In his application to dismiss, appellant argued a denial of his Rule 1100 rights, based solely on the Commonwealth's failure to perfect the appeal which it advised the court it intended to take. On this appeal, appellant's sole argument is that the Commonwealth's petition for extension of time was ...


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