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COMMONWEALTH PENNSYLVANIA v. ROBERT SCHUSTER (07/02/81)

filed: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT SCHUSTER



No. 257 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Northampton County at No. 1715 of 1979.

COUNSEL

James J. Narlesky, Assistant District Attorney, Easton, for Commonwealth, appellant.

Robert Rudas, Bethlehem, for appellee.

Spaeth, Hester and Cavanaugh, JJ.

Author: Cavanaugh

[ 288 Pa. Super. Page 312]

This is an appeal by the Commonwealth from an order granting the defendant's application for dismissal under Pa.R.Crim.P. 1100(f).*fn1 Review of this order necessitates

[ 288 Pa. Super. Page 313]

    consideration of the lower court's order denying the Commonwealth's petition for an extension of time for commencement of trial under Pa.R.Crim.P. 1100(c).*fn2 For reasons stated herein, we remand this case to provide the defendant an opportunity to refute the Commonwealth's claim of unavailability of one of its witnesses.

On June 21, 1979, a written complaint was lodged against the defendant charging him with harassment by communication.*fn3 Therefore, Pa.R.Crim.P. 1100(a)(2),*fn4 required the Commonwealth to bring the defendant to trial on or before December 18, 1979.

On October 15, 1979 the case was listed for trial. However, the Commonwealth requested that the case be continued to the November list since Mr. Kresge, a Commonwealth witness, had suffered a heart attack and was unavailable for trial. The district attorney indicated that at that time they would be better able to ascertain if he would be well enough to testify. Over defense counsel's objection, the court granted a continuance until November.

On November 15, the district attorney appeared before Judge Williams to request another continuance because Mr.

[ 288 Pa. Super. Page 314]

Kresge was still recovering from his heart attack. Defense counsel was not present at this hearing. While the district attorney stated to the Judge that the Commonwealth could probably try the case without Mr. Kresge, he indicated that it would be at a "substantial hardship."*fn5 A physician's written excuse concerning the witness' medical condition was presented and reviewed by the court. The court granted the ...


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