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COMMONWEALTH PENNSYLVANIA v. JAMES CAREY (04/15/83)

filed: April 15, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES CAREY, APPELLANT



No. 1413 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Huntingdon County, No. 199-1979.

COUNSEL

Randall E. Zimmerman, Mifflintown, for appellant.

Stewart L. Kurtz, District Attorney, Huntingdon, submitted a brief on behalf of Commonwealth, appellee.

Wieand, Beck and Montemuro, JJ.

Author: Wieand

[ 313 Pa. Super. Page 23]

James Carey was tried by jury and found guilty of burglary*fn1 and criminal trespass.*fn2 Post verdict motions were dismissed, and Carey was sentenced to a term of imprisonment for burglary only. On direct appeal, Carey contends (1) that he did not receive a speedy trial within the standards of Pa.R.Crim.P. 1100; (2) that the trial court erred in refusing motions for mistrial because of alleged prosecutorial misconduct during closing argument; and (3) that the trial court erred in giving a "missing witness" instruction to the jury. There is no merit in these arguments and, therefore, we affirm the judgment of sentence.

Appellant was apprehended by police at or about 12:30 o'clock, a.m., on October 1, 1979, as he fled from a jewelry

[ 313 Pa. Super. Page 24]

    store in the Borough of Huntingdon, Huntingdon County. A neighbor testified that she had seen an unidentified person enter the jewelry store through a window. A few minutes later, after police had arrived, she saw someone exit through the same window and run away. Appellant was apprehended by police in a yard adjoining the jewelry store by a policeman who gave chase after he observed appellant diving through the jewelry store window. Inside the store, police found burglary tools, pry marks on the safe and various merchandise in disarray.

A criminal complaint was filed against appellant later the same day. Under the speedy trial standards of Pa.R.Crim.P. 1100(b), the Commonwealth was required to commence trial on the charges against appellant on or before March 31, 1980.*fn3 Because trial did not begin until May 6, 1980, thirty-six days after the run-date, we must examine the record to determine whether there was time to be excluded from the computation of the 180 day period or whether the delay was otherwise to be excused.

On February 18, 1980, the date set for trial, no judge had been regularly assigned to Huntingdon County. The sole judge of the Court of Common Pleas had been defeated in a retention election at the November, 1979, general election and had vacated his office on January 6, 1980. An appointment to fill the vacancy was not made by the Governor until February 28, 1980. Senate confirmation followed on March 25, 1980; and on April 4, 1980, the Honorable Newton C. Taylor assumed the duties of office.

On February 18, 1980, the Honorable George Eppinger had been specially assigned to preside during criminal trials in Huntingdon County. On that date, appellant appeared without counsel and requested a continuance. In pertinent part, the following colloquy occurred:

[ 313 Pa. Super. Page 25]

BY MR. KURTZ: Mr. Carey is in the Court, your Honor.

BY THE COURT: What is your first name?

BY THE DEFENDANT: James Patrick Carey.

BY MR. KURTZ: There was a preliminary hearing on this matter on October the 9th, 1979, at which time Attorney Alan Ellis of the Centre County Bar appeared on behalf of Mr. Carey. Subsequently, Mr. Ellis wrote to me requesting certain information and documents, which we supplied. I might show the Court a copy of the letter I received from Mr. Ellis. And then last month -- I am sorry, on February the 7th I received this letter. Mr. Carey advises the Court Administrator that he has paid Mr. Ellis.

BY THE DEFENDANT: Not full, not in full. I am just waiting for the check to come back to pay him in full.

BY THE COURT: Well, Mr. Carey, your case is scheduled for trial this morning.

BY MR. KURTZ: Yes, sir.

BY THE COURT: Are you prepared to proceed?

BY THE DEFENDANT: No, I'm not. I don't have counsel. This is a last minute thing what happened. He told me he was going to pull out. I didn't know anything about it.

BY THE COURT: When did you find out?

BY THE DEFENDANT: A couple days ago.

BY THE COURT: Where is [your attorney]?

BY THE DEFENDANT: I don't know if he is in Israel or -- he didn't say exactly. He said he would be out of the country until the 17th.

BY THE COURT: Until when?

BY THE DEFENDANT: Until the 17th of ...


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