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COMMONWEALTH PENNSYLVANIA v. GARY LONG (03/12/82)

filed: March 12, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GARY LONG



No. 1369 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, dated May 21, 1980, denying the Commonwealth's Petition to Extend Under Pa. R. Crim. P. 6013(c) as of Municipal Court Transcript No. 7910-3645, Misc. 80-00-7995.

COUNSEL

Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Edward Reif, Philadelphia, for appellee.

Wickersham, Popovich and Watkins, JJ.

Author: Watkins

[ 296 Pa. Super. Page 503]

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Criminal Division, and involves a Commonwealth appeal from an order of the court below which denied the Commonwealth's petition seeking to extend the time in which to bring the defendant to trial.

The defendant was arrested on November 1, 1979 when Philadelphia police officers executed a search warrant at defendant's home and seized over 10,000 quaaludes. The defendant was charged with manufacturing, possession with intent to deliver and knowing possession of a controlled substance in violation of 35 Pa.C.S.A. 780-113. He was preliminarily arraigned on the same date. His case was assigned to Philadelphia's Municipal Court.

The defendant's trial was listed for December 24, 1979. On that date defendant's counsel, who had just entered his appearance, requested a continuance of the case because he was unprepared. The case was continued until February 8, 1980, a period of 45 days.

On February 8, 1980, the defendant's counsel was unavailable and the defendant waived his rights under Pa.R.Crim.Pro. 6013 which rule provides that a defendant who is to be tried in a municipal court must be tried within 120 days of his preliminary arraignment. Pa.R.Crim.Pro. 6013(a)(2). On February 8, 1980 defendant waived his Rule 6013 rights from that date until the next listing of the case on March 5, 1980. It is uncontested that this 26 day delay period is chargeable solely to the defendant.

At the March 5, 1980 listing defendant's oral motion to suppress the physical evidence obtained pursuant to the search warrant was heard by the Municipal Court Judge. On April 2, 1980 the judge granted the defendant's suppression motion. On the same day the Commonwealth filed a petition to extend the time in which to bring the defendant to trial pursuant to Rule 6013(c). On April 17, 1980 the Commonwealth appealed the Municipal Court's suppression order to the Court of Common Pleas. On May 7, 1980 the Court of Common Pleas heard both the Rule 6013(c) petition

[ 296 Pa. Super. Page 504]

    and the appeal from the suppression order. On that date the court below reversed the Municipal Court's decision pertaining to the suppression order but also denied the Commonwealth's petition to extend the time in which to bring the defendant to trial. The court held that the Commonwealth's petition to extend the time was not timely filed.

On May 12, 1980 the Commonwealth filed a Petition for Reconsideration of the court's decision which denied its Rule 6013 petition. On May 21, 1980, the court below denied the Commonwealth's reconsideration request. On June 5, 1980 the Commonwealth filed its Notice of Appeal with the Superior Court. On October 7, 1980 the court below filed its opinion which held that the Commonwealth's petition to extend the time was timely ...


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