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.
[ 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.
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 ...