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COMMONWEALTH PENNSYLVANIA v. EARL DEMBY (12/17/81)

decided: December 17, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
EARL DEMBY, APPELLEE



No. 441 January Term, 1979, Appeal from the Judgment of the Superior Court (October Term, 1977 No. 853) Reversing the Judgment of the Court Below and Dismissing Charges as of Indictments 473, 475, 478, 479, 480 and 482, May Term, 1975, Court of Common Pleas, Criminal Trial Division, Philadelphia County.

COUNSEL

Eric B. Henson, Deputy Dist. Atty., Gaele McLaughlin Barthold, Asst. Dist. Atty., for appellant.

John W. Packel, Chief, Appeals Div., Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts, J., filed a dissenting opinion.

Author: Larsen

[ 496 Pa. Page 510]

OPINION

In a criminal complaint filed on March 22, 1975, appellee, Earl Demby, was charged with robbery, assault, conspiracy and weapons offenses. Appellee was arrested on March 24, 1975.

On October 6, 1975 the Commonwealth filed a petition*fn1 to

[ 496 Pa. Page 511]

    extend the Pa.R.Crim.P. 1100 "run date".*fn2 The Commonwealth contended that its petition was timely filed. However, the appellee asserted that the petition was untimely filed because the Rule 1100 run date was allegedly September 18, 1975. On October 21, 1975, the Honorable Julian F. King denied the petition as untimely filed because, as he had computed the 180 day period, the run date had occurred on September 18, 1975. After an ex parte presentation of a petition for reconsideration by the Commonwealth on October 23, 1975, Judge King vacated the order of denial of October 21, 1975, and a full hearing was held on January 6, 1976 before the Honorable Stanley Greenberg. At this hearing Judge Greenberg granted the Commonwealth an extension of time, and trial was set for January 15, 1976.*fn3

In a jury trial, appellee was convicted of burglary, conspiracy and robbery. Motions for a new trial and arrest of judgment were denied, and appellee was sentenced to consecutive prison terms of seven to twenty years on the burglary charge, two and one-half to five years on the conspiracy charge, and seven to twenty years on the robbery charge.

In his appeal to the Superior Court, appellee contended, inter alia, that his Pa.R.Crim.P. 1100 rights were violated in that a reconsideration ruling cannot be construed to relate back to the date the original petition was filed so that the ruling would be within the Rule 1100 run date. The Superior Court agreed, reversed the trial court and dismissed the charges against the appellee. Commonwealth v. Demby, 264 Pa. Super. 438, 400 A.2d 165 (1979). The Commonwealth then sought review in this Court which was granted.

The Commonwealth now contends that the Superior Court erred in holding that the trial court lacked the power to reconsider its denial of the petition for extension of time where the ...


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