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COMMONWEALTH PENNSYLVANIA v. BERNARD CARR (06/19/81)

filed: June 19, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD CARR, APPELLANT



No. 662 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Nos. 416-419 December Term 1977.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

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

Hester, Wickersham and Lipez, JJ. Lipez, J., files a dissenting opinion.

Author: Wickersham

[ 292 Pa. Super. Page 138]

This appeal is before us for reconsideration of appellant's Pa.R.Crim.P. 1100 claim in light of the Pennsylvania Supreme Court's recent opinion in Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980).

Appellant, Bernard Carr, was convicted of robbery and related offenses after a non-jury trial before the Honorable I. Raymond Kremer of the Court of Common Pleas of Philadelphia County. In his post-verdict motions, Carr alleged

[ 292 Pa. Super. Page 139]

    that the court had erred in granting two Commonwealth petitions to extend time for trial under Pa.R.Crim.P. 1100(c). In considering Carr's post-verdict motions, Judge Kremer found that the record with respect to one of the extension hearings was inadequate to permit a meaningful review and that the other had been lost. As a result, Judge Kremer conducted an evidentiary hearing to determine the merits of both petitions to extend and found that they had been properly granted. Judge Kremer accordingly denied Carr's post-verdict motions and sentenced him to concurrent terms of imprisonment totaling four to ten years. Carr appealed from the judgment of sentence, and this panel vacated the judgment of sentence as to simple assault (No. 417) for reasons unrelated to his Rule 1100 claim and affirmed as to his remaining convictions.

After thoroughly reviewing the supreme court's opinion in Akridge, we have concluded that it does not affect our initial disposition of this case. Akridge must be given purely prospective application only. Even if Akridge were properly applied retrospectively, it would not require a different result in the entirely distinct circumstances of this case where there is already a record incontrovertibly establishing due diligence warranting the extensions granted by the lower court.

Akridge is a summary and an emphatic expression of the supreme court's desire that Rule 1100(c) extension hearings be conducted in accordance with Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979), which was announced years after promulgation of the Rule. Akridge is thus a prophylactic rule to assure the desired administration of Rule 1100, itself a purely procedural rule of convenience designed to prevent a systematic backlog of criminal cases in our trial courts. Akridge will require the discharge of criminal defendants after conviction not because the due diligence required by Rule 1100 has not been exercised in fact, but because appellate courts will lack the power to direct that the necessary record be made.

While such a prophylactic rule in no way implicates the truth determining process at trial, ...


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