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COMMONWEALTH PENNSYLVANIA v. EMANUEL LYBRAND (12/07/79)

filed: December 7, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EMANUEL LYBRAND, APPELLANT



No. 246 Special Transfer Docket, Appeal from Judgment of Sentence of Court of Common Pleas, First Judicial District, of Philadelphia, October Session, No. 1719 of 1973

COUNSEL

Raymond J. Takiff, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 272 Pa. Super. Page 478]

Appellant, Emanuel Lybrand, was convicted of murder of the first degree following a jury trial in the Court of Common Pleas of Philadelphia and sentenced to a term of life imprisonment. Lybrand appeals from the judgment of sentence.

Lybrand first claims the court below erred in denying his motion for discharge for violation of Pa.R.Crim.P. 1100(a)(1).*fn1 By agreement of the Commonwealth and Lybrand, the delay at issue extends from September 6, 1973, the date of complaint, to April 29, 1975, the date on which counsel to replace Cecil Moore, Esquire, was appointed.

Following Lybrand's arrest, he retained Cecil Moore, Esquire, to represent him. After several delays, including a one-week continuance granted because defense counsel was unavailable, the preliminary hearing was waived on October 10, 1973. The case was first listed for trial on November 29, 1973, but continued because defense counsel was unavailable

[ 272 Pa. Super. Page 479]

    owing to a lengthy out of town trial. The case was next called for trial on December 6, 1973, but defense counsel did not appear. The case was called on June 5, 1974, the last day before expiration of 270 days,*fn2 and on June 10, 1974, but counsel did not appear on those dates. On the latter date, a contempt citation was issued.

During this time period, after a meeting on April 8, 1974 among counsel, his associate, members of the Philadelphia Court of Common Pleas, Justice Nix of the Pennsylvania Supreme Court, and members of the District Attorney's Office of Philadelphia, defense counsel became involved in a special priority program for the disposition of his cases. The program was necessitated by defense counsel's backlog of one hundred twenty-six criminal cases, including twenty-two homicide cases, in the Philadelphia Court of Common Pleas, which had seriously hampered the fulfillment by the Commonwealth of its obligation to provide speedy trials. The special priority program was designed to expedite trial of defense counsel's backlog of cases in a fair and orderly manner. The cases were to be disposed of in chronological order beginning with motions and waivers and followed by jury trials beginning with the oldest case.*fn3 During the pendency of the program, defense counsel would refrain from accepting new cases.*fn4 Thus, on June 19, 1974 when the instant case was again placed in the "Ready Pool", defense counsel was engaged in the special priority program and unavailable for trial.

When the case was called on September 16, 1974, the Commonwealth requested a continuance because one of its key witnesses had been ...


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