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COMMONWEALTH PENNSYLVANIA v. WAYNE KELLER (05/25/84)

filed: May 25, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WAYNE KELLER



No. 976 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 1459-1461 June Term 1981.

COUNSEL

Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Thomas C. Carroll, Philadelphia, for appellee.

Spaeth, President Judge, and Brosky and Hoffman, JJ.

Author: Brosky

[ 328 Pa. Super. Page 437]

The Commonwealth appeals in this case from an order discharging the appellee and dismissing aggravated assault and related charges that had been brought against him. The order dismissing the charges followed a hearing held on March 9, 1982 to determine whether a Rule 1100(c) petition for an order extending the time for commencement of trial should be granted. The lower court denied the motion and called the case for trial immediately. Because the Commonwealth was unable to proceed, the charges were dismissed and appellee discharged. For the reasons that follow, we reverse.

On May 4, 1981 a criminal complaint was filed charging appellant with simple and aggravated assault, recklessly endangering another person and possessing instruments of

[ 328 Pa. Super. Page 438]

    crime, generally. The original Rule 1100 "run date" was October 28, 1981.

Although the record is not clear as to what occurred on August 7, 1981, we will assume arguendo that on that date the case was continued at the request of appellee, as the Commonwealth contends and the lower court found.

On October 1, 1981 appellee signed a written waiver of his Rule 1100 rights effective October 1 to December 31, 1981. On October 1 appellee apparently indicated that he wished to represent himself.

The case was listed for trial on December 1, 1981, but appellee was not brought to court on that date, the order directing that he be produced having been sent to the wrong prison. The "bring down" was sent to Graterford, but ...


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