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COMMONWEALTH PENNSYLVANIA v. NORVAL "HAPPY" DEMARCO (04/05/84)

argued: April 5, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
NORVAL "HAPPY" DEMARCO, APPELLANT



No. 137 Harrisburg 1983, Appeal from the Judgment of Sentence of April 19, 1983 by the Court of Common Pleas of Dauphin County, Criminal Division, No. 1665 of 1982.

COUNSEL

John W. Murtagh, Jr., Pittsburgh, for appellant.

Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wickersham, Olszewski and Hoffman, JJ.

Author: Olszewski

[ 332 Pa. Super. Page 320]

This matter comes before this court on appeal from the judgment of sentence of April 19, 1983 by the Court of Common Pleas of Dauphin County. Following a jury verdict finding appellant guilty of theft by deception, the court below, in a modified sentence, ordered that the appellant serve a term of incarceration of ten to twenty-three months, imposed costs, a fine of five hundred dollars and directed that restitution be made in the amount of twenty-four hundred dollars. Timely post-trial motions were denied and this appeal followed.

On June 4, 1980, Mrs. Edith Shepler withdrew twenty-four hundred dollars from her savings account and handed it to a man who purported to be a bank examiner. Mr. William Conn, Vice-President and Security Officer of the bank, suspicious of the large withdrawal by a senior citizen, observed two men in the vicinity of the bank and contacted the police.

Detective James N. Negley, of the Derry Township Police Department, used eyewitness descriptions of the two men and an automobile license number to trace the perpetrators to Canada. After Shepler and Conn separately identified the appellant from a photographic array, a complaint was filed charging him with theft by deception and criminal conspiracy, on August 4, 1980. Three days later, the Derry Township Police Department initiated extradition proceedings against the appellant, culminating in an arrest on April 21, 1982, in Canada.

On May 18, 1982, the Commonwealth withdrew its first complaint and filed a second complaint which corrected a misspelling of the appellant's name and charged only theft by deception.

[ 332 Pa. Super. Page 321]

After a hearing in Canada, the appellant was extradited to the United States, and was tried on November 16, 1982. Following a jury verdict of guilty and a denial of timely post-trial motions, this appeal was filed.

Seven issues are raised in this appeal. The appellant first argues that the Commonwealth denied him his right to a speedy trial under Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A., which states in pertinent part:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

(d) In determining the period for commencement of trial, there shall be excluded therefrom:

(3) such period of delay at any stage of the proceedings as results from:

(i) the unavailability of the defendant . . . .

The appellant alleges that he was not "unavailable for trial" during the period from the date the first complaint was filed, August 4, 1980, to the date of trial, November 16, 1982. We disagree, and hold that the appellant's right to a speedy trial was not violated.

A recitation of the key events in the history of this case is necessary:

June 4, 1980 Criminal offense occurs.

August 4, 1980 Complaint filed charging Norwall "Happy"

DeMarco with theft by deception and criminal

     conspiracy.

August 7, 1980 Canadian police advise Commonwealth to send

     extradition materials directly to Peel Regional

Police Department, Ontario, Canada.

September 30, 1980 Commonwealth sends documents to Canadian au-

     to February 5, 1981 thorities, who request two separate amendments

     of the materials.

January 1, 1981 [One hundred eighty days have passed from fil-

     ing of complaint.]

February 5, 1981 Commonwealth inquires into status of extradition

     and is advised of delay due to backlog in Cana-

     dian work program.

March 2, 1981 Commonwealth receives copy of letter from Ca-

     nadian police to U.S. Consulate ...


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