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COMMONWEALTH PENNSYLVANIA v. JAMES BANNER (02/05/82)

filed: February 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES BANNER, APPELLANT



No. 71 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division, at No. 367 CA 1979

COUNSEL

H. Stanley Rebert, Public Defender, York, for appellant.

William T. Hast, Assistant District Attorney, York, for Commonwealth, appellee.

Brosky, McEwen and Beck, JJ.

Author: Brosky

[ 295 Pa. Super. Page 89]

In 1979, appellant was convicted of four criminal counts arising ut of an attempted prison escape in which he participated in 1978. He received a sentence of 15-30 years imprisonment for the crimes of assault by prisoner,*fn1 aggravated assault,*fn2 criminal attempt to commit escape,*fn3 and possession of implements for escape.*fn4 On appeal, he argues that the trial court erred in two respects. First, he assigns error to the granting of an application to extend the trial date made by the Commonwealth. Second, he contends that the trial court should have granted a mistrial because the Commonwealth used a peremptory challenge to remove the only black venireman. We affirm.

The incident which led to appellant's trial occurred on November 19, 1978 at the York County prison where appellant was incarcerated. Mr. Banner was shot and injured during the attempt.

A written complaint was filed against him on March 20, 1979. A preliminary hearing was held on March 21; he was arraigned on May 21, 1979 and trial was set for the July, 1979 term of York County Criminal Court. On July 19, 1979, the Commonwealth filed an application to extend the time of trial which was granted. Trial was held on September 27, 1979; the 180-day period prescribed by Rule 1100 expired on September 16, 1979.

Appellant argues that the lower court erred in granting an extension of the trial date because the Commonwealth failed to exercise due diligence to bring the case to trial within the requisite period.*fn5

Rule 1100 provides in pertinent part:

[ 295 Pa. Super. Page 90]

(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

(c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial . . . . Such application shall be granted only if trial cannot be commenced within the proscribed period despite due diligence of the Commonwealth . . . .

The Commonwealth has the burden of establishing due diligence. Commonwealth v. Bayani, 261 Pa. ...


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