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COMMONWEALTH PENNSYLVANIA v. ALBERT NICHOLS (05/25/84)

filed: May 25, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ALBERT NICHOLS



No. 3059 Phila., 1981, Appeal from the Order dated November 6, 1981 of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1225 and 1226 July Session, 1980.

COUNSEL

Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Com., appellant.

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.

Rowley, McEwen and Watkins, JJ.

Author: Watkins

[ 328 Pa. Super. Page 309]

This is an appeal by the Commonwealth from a post-verdict discharge of the defendant under Rule 1100 of Pa.Rules of Criminal Procedure after conviction of criminal trespass and conspiracy.

[ 328 Pa. Super. Page 310]

The pertinent procedure is as follows:

The defendant was charged with burglary, criminal trespass and conspiracy. The run date was December 15, 1980. The first preliminary hearing was continued on June 23, 1980 because of the illness of the arresting officer; at the next listing the co-defendant's attorney was unavailable. The hearing was finally held on July 16, 1980 when he was held for court. He was arraigned on August 5, 1980.

At the first trial listing, the co-defendant's attorney failed to appear. At the second trial listing, the Commonwealth could not proceed because of the illness of the complainant. On December 4, 1980, the Commonwealth was ready to proceed to trial, but the case was marked "Ready -- Not reached." It was then listed for trial on February 9, 1981, the earliest possible date. The Commonwealth then filed a timely extension petition. The Honorable Edward Rosenwald heard the petition on January 27, 1980 and after a lengthy hearing, extended the time for trial to February 10, 1981 finding that the Commonwealth used due diligence to bring the case to trial. On February 9, 1981, the Commonwealth was again prepared for trial, but again the case was marked "Ready -- Not Reached". A further continuance was granted to March 5, 1981.

The Commonwealth filed its second timely extension petition which was heard on March 2, 1981 by the Honorable Maurice Sporkin and after a lengthy hearing, he granted the extension until March 5, 1981 finding that the Commonwealth had exercised due diligence, but he also ordered that the defendant be discharged if the Commonwealth did not meet the new due date.

On March 5, 1981, the Commonwealth proceeded to trial before the Honorable Leon Katz. Judge Katz deferred adjudication to determine whether there was sufficient evidence of non-permission since the ...


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