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COMMONWEALTH PENNSYLVANIA v. RITA DARLENE GALLO (04/11/80)

filed: April 11, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
RITA DARLENE GALLO, APPELLANT



No. 891 April Term, 1978, Appeal from the Judgment of Sentence Entered April 4, 1978, of the Court of Common Pleas of the 37th Judicial District, Forest County Branch, Criminal Division, at Nos. 37 and 39 of 1976.

COUNSEL

M. Dan Mason, Meadville, for appellant.

Paul H. Millin, District Attorney, Tionesta, for Commonwealth, appellee.

Van der Voort, Spaeth and Watkins, JJ. Spaeth, J., concurs in the result.

Author: Watkins

[ 276 Pa. Super. Page 565]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Forest County, Criminal Division, by the defendant-appellant, Rita Darlene Gallo, after her conviction by a jury on charges of arson and false report to a law enforcement officer.

Defendant was sentenced to six months to two years in prison, a $300 fine and restitution to the victim as a result of her convictions of the instant charges.

The defendant was arrested on August 17, 1976 and charged with arson and was arrested again on September 10, 1976 and charged with making a false report to a law enforcement officer and corruption of a minor. All charges arise from an incident which occurred on June 9, 1976 wherein a fire of incendiary origin burned several buildings. On January 14, 1977, the Commonwealth filed a Petition for Extension of Time in which to bring the defendant to trial. After hearings at which defendant presented no evidence, the court granted the Commonwealth's petition granting the Commonwealth until May 3, 1977 to commence the trial. Defendant later filed a Petition to Dismiss pursuant to Rule 1100 but this petition was dismissed. Defendant was then convicted by a jury of the offenses, a new trial was granted to the defendant, and on September 23, 1977 the defendant was found guilty by a jury of arson and false reports. Defendant now appeals the second convictions.

Defendant's first argument was that the court below erred when it granted the Commonwealth's petition to

[ 276 Pa. Super. Page 566]

    extend the time because the Commonwealth did not show due diligence in attempting to bring the defendant to trial and because the Petition for Extension of Time contained only the docket number of the false reports charge. Defendant's counsel had requested that she be considered for the A.R.D. program. The A.R.D. proceeding had been scheduled for January 5, 1977, but defendant did not appear at the proceeding. Defendant's counsel appeared at the proceeding and informed the court that his services on behalf of the defendant had been terminated. In October of 1976, an A.R.D. questionnaire had been forwarded to the defendant but had not been completed by her on January 5, 1977. Because it was impossible to formally arraign the defendant and bring her to trial before the May Term of Court the Commonwealth's petition was granted. We see no error in this. The Commonwealth had not proceeded to arraign defendant because she, through her counsel, had requested placement in the A.R.D. program. Until January 5, 1977, the Commonwealth had no way of knowing that she would change her mind, dismiss her attorney, and fail to appear at the hearing scheduled for that date. Therefore, the circumstances which caused the delay in bringing defendant to trial were caused by the defendant and she cannot now complain of such delay. where a defendant is responsible for the delay he cannot later benefit from the delay that he, himself, caused. See Commonwealth v. Jones, 250 Pa. Super. 98, 378 A.2d 471 (1977); Commonwealth v. Sampson, 250 Pa. Super. 157, 378 A.2d 874 (1977).

Defendant also alleges that the court below erred when it permitted the arson and "corrupting" charges to be tried on May 3, 1977 because the Commonwealth's petition to extend the time contained only the docket number of the "false reports" charge.

The District Magistrate failed to comply with Penna. Rule of Crim. Pro. 131(b) when he used separate complaints for the three charges. Later the Clerk of Courts properly docketed the case "37, 38 and 39 of 1976". The Petition ...


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