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COMMONWEALTH PENNSYLVANIA v. FRANK PIZZELLA (07/15/83)

filed: July 15, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
FRANK PIZZELLA, JR.



No. 2481 Philadelphia 1981, APPEAL FROM THE ORDER OF SEPTEMBER 8, 1981 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, CRIMINAL NO. 258 of 1981

COUNSEL

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellant.

Ronald D. Oley, Assistant Public Defender, Wilkes-Barre, for appellee.

Hester, Cavanaugh and Cirillo, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Cirillo

[ 316 Pa. Super. Page 377]

This is an appeal by the Commonwealth from a lower court order dismissing charges against the appellee, which was predicated upon a finding that the appellee's right to a speedy trial under Pa.R.Crim.P. 1100 had been violated. We reverse.

On January 19, 1981, appellee was arrested and a criminal complaint was filed charging him with criminal solicitation.*fn1 On March 5, 1981, appellee filed a petition for writ of habeas corpus. On May 12, 1981, the Commonwealth filed a timely petition for an extension of time pursuant to Pa.R.Crim.P. 1100(c)(1). A 48-day extension was granted on May 20, 1981, because of the delay resulting from the

[ 316 Pa. Super. Page 378]

    pending habeas corpus petition. The case was called to trial on September 8, 1981. On the morning of trial, the appellee filed a motion to dismiss the charges pursuant to Pa.R.Crim.P. 1100(f). After hearing arguments, the Honorable Bernard Podcasy granted the appellee's motion, dismissing charges with prejudice. This appeal followed.

We find, as did the lower court, that the 180-day period under Rule 1100 began to run on January 19, 1981, when the complaint against the appellee was filed; and, further, that the 180th day was July 18, 1981. The lower court then added the 48-day extension to July 18, 1981, and concluded that the trial should have begun on or before September 4, 1981. This was incorrect.

The governing principle which must guide our examination of Rule 1100 was recently stated by Justice Kauffman in Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), wherein it was said:

Rule 1100 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society . . . . In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it . . . . So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental ...


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