No. 1801 Philadelphia, 1981, Appeal from the Judgment of Sentence of June 12, 1981 in the Court of Common Pleas of Montgomery County, Criminal, No. 1026-80.
Linda DiCicco, Assistant Public Defender, Norristown, for appellant.
Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
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This appeal is from judgment of sentence for attempted burglary.*fn1 Appellant was also charged with, and a jury
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found him guilty of, criminal conspiracy*fn2 and possession of an instrument of crime.*fn3 He argues that all of the charges should have been dismissed because he was not brought to trial as speedily as required by Pa.R.Crim.R. 1100. In the alternative, he argues that he should only have been sentenced for possession of an instrument of crime, and that the lower court should have "arrest[ed] judgment" on the other charges.*fn4 We affirm.
On March 28, 1980, appellant was arrested and charged with criminal conspiracy, criminal attempt (burglary), and possession of an instrument of crime. Under Pa.R.Crim.P. 1100, his trial was required to start within 180 days, or no later than September 24, 1980. On September 18, 1980, the Commonwealth filed a motion for an extension of time. After a hearing, the lower court granted the motion on October 6, 1980, and appellant's trial started that day. Appellant argues that the evidence at the hearing did not support the grant of an extension.*fn5
In support of its motion for an extension, the Commonwealth called Dolly Strizziere, the Criminal Trial Assignment Clerk in the Court Administrator's Office. It appears
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from Mrs. Strizziere's testimony that appellant's case was first listed for trial on July 9, 1980, N.T. 3, but was not reached within the 180 day period because of a shortage of judges. The gist of her testimony was that only five judges were available to try criminal cases, and that they were not available all of the time because of summer vacations, and because one of the judges had been hurt in an accident. Also, she testified that in listing cases for trial, she listed those with the "more immediate Rule 1100 time problem" first. N.T. 11. After hearing ...