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COMMONWEALTH PENNSYLVANIA v. DELMAR WASHINGTON (12/21/79)

decided: December 21, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DELMAR WASHINGTON, APPELLANT



No. 698 January Term 1977, No. 14 January Term 1979, Appeals from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 1111 and 1112 November Term 1976.

COUNSEL

Walter M. Phillips, Jr., Philadelphia, for appellant.

Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Div., Victor M. Fortuno, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Manderino, J., did not participate in the consideration or decision of this case.

Author: Eagen

[ 488 Pa. Page 136]

OPINION OF THE COURT

These are appeals from the judgments of sentence imposed on Delmar Washington following his conviction by a jury on March 16, 1977, of murder of the first degree for a homicide committed in Philadelphia, and for possession of an instrument of crime generally.

Washington initially contends the criminal charges against him should have been dismissed in the trial court because he was not brought to trial within one hundred twenty days after his return to Pennsylvania from the State of Kansas under a detainer, pursuant to the Interstate Agreement on Detainers (Agreement on Detainers), Act of September 8, 1959, P.L. 829, No. 324, § 1, 19 P.S. §§ 1431 et seq.*fn1

Washington was returned by the police to Pennsylvania from Kansas on October 26, 1976. His trial commenced in Philadelphia on March 2, 1977. However, on February 17, six days before the running of the one-hundred-twenty-day period, Washington consented to a continuance of the trial to February 28. On February 28, the trial was again delayed because Washington filed a motion to dismiss the charges for violation of art. IV(c) of the Agreement on Detainers. Argument on this motion was heard by the court on March 1 and denied the same day. The trial began the following day. Under such circumstances, we find no violation of art. IV(c) of the Agreement on Detainers.*fn2 The

[ 488 Pa. Page 137]

    one-hundred-twenty-day period was tolled either by consent or Washington's own actions.*fn3

While we agree the trial court correctly rejected the motion to dismiss, we are persuaded the trial court erred in not granting a new trial.

When Washington was taken into custody by Pennsylvania officers in Kansas, he was serving a term of imprisonment in Leavenworth ...


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