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COMMONWEALTH PENNSYLVANIA v. EDWIN MCCULLEY (09/28/79)

filed: September 28, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWIN MCCULLEY, APPELLANT



No. 2679 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division of Bucks County, on Information No. 2587 of 1976 and 3042 of 1976.

COUNSEL

Richard S. Wasserbly, Doylestown, for appellant.

Stephen B. Harris, First Assistant District Attorney, Doylestown, submitted a brief on behalf of Commonwealth, appellee.

Price, Gates*fn* and Dowling,*fn* JJ. Price, J., files a dissenting opinion.

Author: Gates

[ 270 Pa. Super. Page 117]

On September 2, 1976 a criminal complaint was filed charging appellant with burglary and attempted theft. He was apprehended on that date. A preliminary hearing was held on September 13, 1976 and the appellant was arraigned before the Court of Common Pleas of Bucks County on December 29, 1976. At arraignment appellant was notified that his trial date would be January 17, 1977.

On the scheduled date, the defendant failed to appear and a bench warrant was issued. The appellant was apprehended on March 7, 1977. On that day he was told that the next scheduled trial date was April 11, 1977. On that day appellant appeared with the public defender and requested a continuance in order to obtain private counsel. The Commonwealth objected but the trial court granted the continuance and set May 2, 1977 as the trial date. Appellant voiced no objection to the new trial date.

On May 2, 1977 appellant appeared with the same public defender and again requested a continuance. The request was denied. Appellant filed a motion to dismiss pursuant to Rule 1100 which was dismissed after hearing.

[ 270 Pa. Super. Page 118]

Defendant was then convicted in a bench trial. Posttrial motions were filed and denied. Sentence was imposed and this appeal followed.

The issue before us is the propriety of the lower court's refusal to dismiss the charges on appellant's claim that Rule 1100 was violated.

The criminal complaint was filed on September 2, 1976. Therefore, pursuant to Rule 1100(a)(2),*fn1 trial should have commenced on or before March 7, 1977.*fn2 Appellant's trial was originally scheduled for January 17, 1977. The defendant did not appear and a bench warrant issued. At the May 2, 1977 hearing the Commonwealth demonstrated that the police officer made reasonable efforts to locate and apprehend appellant.*fn3 The appellant was not apprehended until March 7, 1977, a period of forty-eight (48) days from the date of the first scheduled trial. The Commonwealth contends that ...


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