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COMMONWEALTH PENNSYLVANIA v. FRANK DELPIANO (09/04/81)

filed: September 4, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
FRANK DELPIANO, APPELLANT



No. 110 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, First Judicial District of Pennsylvania, Criminal Trial Division, No. 124 February Term, 1979. (Philadelphia County)

COUNSEL

John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ. Brosky, J., files a concurring opinion.

Author: Johnson

[ 290 Pa. Super. Page 511]

After a non-jury trial, Appellant was found guilty of Receiving Stolen Property.*fn1 Appellant's post-verdict motions were denied, and Appellant was sentenced to three

[ 290 Pa. Super. Page 512]

    years probation. This is an appeal from the judgment of sentence. For the following reasons, we reverse and discharge Appellant.

The complaint was filed against Appellant on December 12, 1978; and the run date was June 11, 1979. On May 10, 1979, Appellant filed a motion to suppress; and the court continued the case until June 21, 1979. On June 6, 1979, the Commonwealth filed the first petition for an extension under Rule 1100(c).*fn2 The petition was granted on June 7, 1979; and the trial was scheduled for June 25, 1979. On June 21, 1979, the Commonwealth filed a second Rule 1100(c) petition, alleging, "Detective ill." The judge was also ill on June 21. On July 19, 1979, the court granted the Commonwealth's second petition and extended the trial date to August 17, 1979.

The Commonwealth filed a third Rule 1100(c) petition on August 17, 1979. This petition averred, "Aug. 15, 1979 -- arresting officer on vacation." The court granted the aforesaid petition on September 26, 1979, and extended the trial date to October 3, 1979. On this date, the Commonwealth filed a fourth petition for extension under Rule 1100(c). This petition averred, "Court closed due to Papal Visit." The judge granted this petition on October 19, 1979, and extended the trial date to October 23, 1979. On this date, Appellant's trial was finally commenced; and Appellant was found guilty of Receiving Stolen Property. The property consisted of three rifles. On January 7, 1980, the Court denied Appellant's post-trial motions and sentenced Appellant to three years probation.

[ 290 Pa. Super. Page 513]

Appellant contends that the Court erred in granting the Commonwealth's second, third, and fourth petitions for an extension under Rule 1100(c). Appellant does not contest the first extension since the Court had Appellant's motion to suppress under advisement at the expiration of the original run date.

The Commonwealth's second Petition for Extension under Rule 1100(c) is a one-page form petition with boilerplate which avers that, despite the Commonwealth's exercise of due diligence, the case could not be tried before the run date. The only exercise of due diligence listed by the Commonwealth was: "June 21, 1979 -- Detective ill." The hearing on this petition was held on July 19, 1979. Despite a request by defense counsel that the Commonwealth present testimony concerning whether or not the case ...


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