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filed: December 28, 1979.


No. 317 Special Transfer Docket, Appeal from Judgments of Sentence of Court of Common Pleas of Lycoming County, Criminal Division, No. 75-10, 835.


Peter T. Campana, Williamsport, for appellant.

Robert F. Banks, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn* Eagen, J., files a concurring opinion. Hoffman, J., files a dissenting opinion.

Author: Hess

[ 273 Pa. Super. Page 450]

Diane Gottschall was adjudged guilty by a three judge panel of murder of the third degree, attempt to conceal the death of a bastard child and incest, allegedly involving a fourteen-year-old brother. She was sentenced to confinement on the incest charge and given suspended sentences and probation on the other charges. There are four allegations of error.

Appellant contends that the charges should be dismissed because of a violation of Pennsylvania Rule of Criminal Procedure 1100 relating to extending the 180-day rule for trial of criminal cases. Complaint was filed August 18, 1975. Delay was occasioned by reason of necessity for mental examination, study and report. An order granted on February 2, 1976, allowing an extension for trial until the end of March 1976 session is not questioned. Prior to the expiration of that extension appellant waived a jury trial and the trial court, after hearing, suppressed appellant's statements. On March 30, 1976, a second extension was granted so that the Commonwealth could appeal the unfavorable suppression order, and the extension was granted "until thirty days after Pennsylvania Supreme Court disposes of Commonwealth appeal." The appeal was filed on March 31, 1976.

It was not until February 28, 1977, that the parties were notified that the transcript of the court reporter was lodged and on April 14, 1977 it was filed of record. Time was consumed by plea bargaining during the pendency of the appeal. Thereafter the Commonwealth decided to discontinue the appeal, and on June 1, 1977, such action was taken. On June 21, 1977, a third extension was granted to the Commonwealth and it was ordered that trial take place before the end of July 1977. On July 22, 1977, appellant

[ 273 Pa. Super. Page 451]

    filed a motion to dismiss for Rule 1100 violation. Trial was held July 25-27, 1977.

Appellant contends that the second and third extensions should not have been granted. It is alleged that the suppression rulings were correct, and that the appeal amounted to an unreasonable delay. The fact that the appeal was discontinued would appear to support that contention. The Commonwealth submits that a decision on the appeal could only be made after the record was transcribed, and that prompt action was taken once the record was available for consideration. We support the Commonwealth position. To say the least, the case on its facts was most unfortunate and unusual. The Commonwealth has the right to interlocutory appeal of an unfavorable pretrial ruling that is crucial to its case, Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977). The fact that it later chose to discontinue the appeal, in our opinion, does not indicate undue delay.

Although no disposition was made by the Supreme Court, discontinuance of the appeal on June 1, 1977, would apparently require trial before July 1, 1977, under the provisions of the extension. A further delay was requested and allowed because no non-jury dates were available and no visiting judges were available for the remainder of the month. Three visiting senior judges were secured and the case was tried in July. Considering all the factors along with the time lost for consideration of plea bargaining, we are satisfied that the record warrants a finding of due diligence; that the three extension orders were justified; and that the petition to dismiss the charges was properly denied. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1977).

Appellant alleges that the Commonwealth has failed to prove beyond a reasonable doubt that she was sane at the time of the alleged offenses. The defense produced a psychiatrist and corroborating testimony that appellant was schizophrenic at the time of the ...

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