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COMMONWEALTH PENNSYLVANIA v. GLEN KITE (11/10/83)

filed: November 10, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GLEN KITE



No. 1154 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 79-09-267/269.

COUNSEL

Nancy D. Wasser, Assistant District Attorney, Philadelphia for Commonwealth, appellant.

Phyllis H. Subin, Assistant Public Defender, Philadelphia, for appellee.

Cavanaugh, Johnson and Lipez, JJ.

Author: Cavanaugh

[ 321 Pa. Super. Page 413]

The Commonwealth appeals from the order of April 16, 1980, that granted appellee's motion in arrest of judgment and discharged appellee because his Rule 1100*fn1 rights had been violated. For the following reasons, we reverse the order of the lower court discharging the appellee.

On July 20, 1979, a complaint was filed against appellee on charges of theft, robbery, and criminal conspiracy. The run date under Rule 1100 was, therefore, January 16, 1980.

The preliminary hearing for appellee and two co-defendants was scheduled for July 24, 1979; but it was continued until August 7, 1979, so counsel could be appointed for a co-defendant. On August 7, 1979, the co-defendant's counsel did not appear, so the hearing was continued until August 14, 1979. On the aforesaid date, a co-defendant's attorney was ill, and the hearing was continued to August 28, 1979. On that date, when a co-defendant was not brought to the courtroom, the Commonwealth moved to sever. The court denied the Commonwealth's motion and continued the case until September 4, 1979, when the preliminary hearing was finally conducted.

[ 321 Pa. Super. Page 414]

The case was scheduled for a status report and informal discovery on September 27, 1979; however, the case was continued October 17, 1979, because a co-defendant's attorney was unavailable.

Although trial was scheduled to commence on December 13, 1979, the case was continued to February 5, 1980, because a co-defendant did not appear. A petition to extend under Rule 1100(c) was filed by the Commonwealth on December 14, 1979; and a hearing on the petition was conducted on January 18, 1980.

At the hearing on January 18, 1980, the lower court granted the Commonwealth's petition and extended the rule to February 7, 1980. The court also excluded, under Rule 1100(d),*fn2 the 14-day period from July 24, to August 7, 1979. On February 5, 1980, appellee's case was severed; and he was tried without a jury and adjudged guilty of all charges. Appellee filed a motion for a new trial and a ...


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