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COMMONWEALTH PENNSYLVANIA v. FRANK ALSTON (04/20/81)

filed: April 20, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK ALSTON, APPELLANT



No. 2331 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1003 and 1005 February Session, 1976.

COUNSEL

Elaine DeMasse, Public Defender, Philadelphia, for appellant.

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

Brosky, Hoffman and Cirillo, JJ.*fn*

Author: Brosky

[ 286 Pa. Super. Page 292]

Following appellant's conviction on charges of robbery and possession of instruments of crime, Alston's post-verdict motions were denied. An appeal of that denial came before us, and we affirmed on all issues except that concerning Pennsylvania Rule of Criminal Procedure 1100, hereinafter Rule 1100, Commonwealth v. Alston, 266 Pa. Super. 18, 402 A.2d 1056 (1979). We remanded to the trial court for an evidentiary hearing on the Rule 1100 question. The lower court held for the Commonwealth at the evidentiary hearing, and this appeal followed. We disagree and reverse.

The facts surrounding appellant's conviction were most ably stated by Judge Van Der Voort in his opinion following appellant's first appeal before this court:

The facts of the crimes charged are quite simple. On January 14, 1976, an intruder burst into the home of Edith Smith. The intruder, after forcing his way through the front door, and into the living room of the home pointed a pistol at Mrs. Smith, who was in that room. He unplugged and picked up a portable television set in the room and immediately left the home. This incident was viewed by another occupant of the home, Mrs. Katherine Gorman, who was a tenant of Mrs. Smith, and who was looking into the room when the intruder entered, grabbed the television, and then departed with the television.

Id., 266 Pa. Super. at 20, 402 A.2d at 1056-1057.

On January 18, 1976, a criminal complaint was filed against the appellant. Rule 1100(a)(2) required his trial to take place on or before July 15, 1976. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). On April 9, 1976, the case was scheduled for trial, but was continued due to courtroom unavailability. Similarly, on May 28, 1976, the trial was continued to July 13, 1976 because of a crowded docket. Motions were also to be heard on July 13, 1976.

[ 286 Pa. Super. Page 293]

On July 13, 1976, without presenting a petition, the Commonwealth moved for an extension of time under Rule 1100(c). The basis for the extension was the unavailability of the police officer who investigated the case.*fn1 The lower court continued the case until July 26, 1976 and advised the Commonwealth to file a petition for a Rule 1100(c) extension. The court noted: "Rule 1100 extended until next continuance." On July 14, 1976, the Commonwealth filed a petition for a Rule 1100 extension.

On July 21, 1976, the trial court heard appellant's motion to dismiss because of the alleged Rule 1100 violation. Referring to its notation of July 13, 1976, the trial court denied appellant's motion on the grounds that an extension to ...


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