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filed: September 4, 1981.


No. 1240 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, No. 793 and 794 March Term 1978.


Hugh C. Clark, Philadelphia, for appellant.

Nancy D. Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Popovich and Watkins, JJ.

Author: Wickersham

[ 293 Pa. Super. Page 212]

Following a trial by jury, defendant-appellant, Edward P. Harrison, was found guilty of unauthorized use of an automobile and theft by receiving stolen property.*fn1

Appellant originally was tried before the Honorable Bernard J. Goodheart and a jury on September 14, 1978. A new trial was granted July 11, 1979 for reasons unconnected with the present appeal. Appellant was retried commencing Monday, December 17, 1979 before the Honorable William M. Marutani and a jury, and was convicted and sentenced.

[ 293 Pa. Super. Page 213]

Defendant alleges in this appeal that he should be discharged because he was not retried within 120 days of the date when his new trial was granted.

When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.

Pa.R.Crim.P. 1100(e)(1).

Inasmuch as the new trial was granted on July 11, 1979, Rule 1100(e)(1) required the Commonwealth to bring the defendant to trial by November 8, 1979. Trial actually commenced, as indicated hereinabove, Monday, December 17, 1979. Appellant poses the question involved in this appeal as follows:

In a situation where the Court allows an indigent defendant's court-appointed counsel to withdraw from his case, and there are twenty-four days remaining under the time demands of Pa.R.Crim.P. 1100, is the Commonwealth empowered to request a continuance more than five weeks beyond the run-date for the ostensible purpose of giving the defendant and his new counsel ample time to prepare their case?

Brief for Appellant at 2.

The governing principle which must guide our examination of Rule 1100 was recently restated by Justice Kauffman in Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), wherein it was said:

Rule 1100 'serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society,' Commonwealth v. Brocklehurst, 491 Pa. 151, [153-154], 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In

[ 293 Pa. Super. Page 214]

    determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 205 n.4, 409 A.2d 308, n.4 [1979]. The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Id., 493 Pa. at 70-72, 425 A.2d at 369-371.

The difficulty arose in this case due to the successive withdrawal of several court-appointed counsel. A review of the record reflects the following:

July 11, 1979: New trial granted by Judge Goodheart; trial scheduled for October 15, 1979 and defendant represented by Eugene Edw. J. Maier, Esquire.

September 21, 1979: Eugene Edw. J. Maier, Esquire permitted to withdraw as counsel.

September 26, 1979: Stephen E. Levin, Esquire appointed to represent defendant.

October 11, 1979: Stephen E. Levin, Esquire permitted to withdraw as counsel.

October 11, 1979: Norman Ackerman, Esquire appointed to represent defendant.

[ 293 Pa. Super. Page 215]

We agree with the conclusion reached by Judge Marutani in his opinion filed July 10, 1980 sur Pa.R.A.P. 1925 in which he said:

Although this case may present a close question as to whether the extension was properly granted, we have ruled that it was. The Commonwealth was ready to try defendant on October 15, 1979. The delay that resulted thereafter was due to an attempt by the district attorney to insure that the defendant could not raise a claim of ineffective assistance of counsel. The judge who heard the Rule 1100 extension Petition found no violation of the defendant's rights in this attempt. We affirm this finding.

Id. at 10 (footnote omitted).*fn2

Judgment of sentence affirmed.

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