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COMMONWEALTH PENNSYLVANIA v. ROBERT WALKER (04/25/80)

filed: April 25, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT WALKER, APPELLANT



No. 429 OCTOBER TERM, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at No. 1776 September Session, 1978

COUNSEL

Leonard Sosnov, Assistant Public Defender, John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Wieand and Van der Voort, JJ.*fn* Price, J., files a dissenting statement.

Author: Van Der Voort

[ 277 Pa. Super. Page 211]

Appellant was convicted of receiving stolen property in a trial without jury. He has appealed to this Court, raising two alleged reversible errors.

I The first is that the lower court improperly granted a petition to extend the trial time beyond 180 days in violation of Rule 1100.

Judge White disposes of this argument in his opinion by saying that the record disclosed "several continuances due solely to appellant's incarceration in Bucks County on an unrelated charge. This period of delay is attributable to appellant and due diligence was established by the prosecution."

Counsel for appellant says the petition to extend the time beyond 180 days should not have been granted because the petition recited only that a period of 7 days was excludable under Rule 1100(d), August 3-10, 1978 when "defendant failed to appear; in Bucks County prison."

The petition for an extension was heard by Judge Blake. The Commonwealth presented evidence through two police officers establishing that a warrant for arrest was issued on May 16, 1978. Between that date and June 3, 1978, Officer Kadelock tried to locate appellant at his stated residence, the home of his mother-in-law. She told him that appellant was not there; and his wife had separated; and gave him a phone number. He reached the wife by phone and received some suggestions as to where appellant might be found." This area the officer visited in the hope of finding appellant. Nothing further was done until July 18th when Detective Canamucio was assigned to assist Kadelock. He checked the wife's new residence and was informed appellant was in Bucks County prison. The arrest was made on July 27, 1978.

May 16, 1978 is the starting day for the 180 day period and the period would end November 13, 1978. Judge Blake was

[ 277 Pa. Super. Page 212]

    satisfied that the Commonwealth had established that appellant was unavailable and that the Commonwealth had exerted due diligence to June, 6, 1978, roughly 20 days. Therefore, he extended ...


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