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COMMONWEALTH PENNSYLVANIA v. BOOKER T. FAIRLEY (04/16/82)

filed: April 16, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
BOOKER T. FAIRLEY, APPELLANT



No. 2415 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Chester County, Pennsylvania, Criminal Division at No. 1109-78.

COUNSEL

William G. Brown, Assistant Public Defender, West Chester, for appellant.

Robert P. Brendza, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Spaeth, Popovich and Montgomery, JJ.

Author: Popovich

[ 298 Pa. Super. Page 238]

Following a jury trial, appellant, Booker T. Fairley, was found guilty of driving under the influence of alcohol.*fn1 Post-verdict motions were denied and a one year period of probation was imposed. This direct appeal followed. We affirm.

On appeal, appellant raises two issues: (1) whether his right to a speedy trial under Pa.R.Crim.P. 1100 was violated; and (2) whether the evidence was sufficient to support his conviction.

The facts pertinent to appellant's Rule 1100 claim are as follows:

[ 298 Pa. Super. Page 239]

On June 30, 1978, a criminal complaint was filed against appellant charging him with driving under the influence of alcohol. The 180 day period in which trial was to commence under Pa.R.Crim.P. 1100 would have expired on December 27, 1978.*fn2 On November 27, 1978, one month prior to the expiration of the 180 day period, the prosecution petitioned the court for an extension of time in which to commence trial,*fn3 asserting the trial court's inability to schedule appellant's trial within the period as the basis of its request. Following a hearing on the petition, the court below granted the Commonwealth's application and entered an order extending the commencement of trial to March 26, 1979. Appellant was tried on March 21, 1979, and found guilty.

Appellant now contends that because the lower court erred in granting the Commonwealth's extension petition, his right to a speedy trial was violated. We disagree.

To begin with, our Supreme Court has stated that a petition to extend the time for commencement of trial under Pa.R.Crim.P. 1100(c) may be granted:

"only upon a record showing: (1) the 'due diligence' of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability ...


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