No. 3611 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 3784 November, 1981.
Harold Diamond, Philadelphia, for appellant.
Thomas R. Quinn, Assistant District Attorney, for Commonwealth, appellee.
Wickersham, Wieand and Lipez, JJ.
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Edward Glessner, having been tried and convicted in Philadelphia Municipal Court for violations of the Uniform Firearms Act,*fn1 appealed to the Court of Common Pleas. Upon trial de novo before the Honorable Stanley L. Kubacki, sitting without a jury, Glessner was found guilty of having a fully loaded, unlicensed revolver in his possession on March 15, 1981. Post-verdict motions were denied, and a sentence of two and one-half to five years imprisonment was imposed. On direct appeal, Glessner contends that: (1)
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his right to a speedy trial both in Municipal Court and in the Court of Common Pleas, as guaranteed by Pa.R.Crim.P. 6013, was violated; (2) the trial court erred in denying a motion to suppress the evidence seized at the time of appellant's arrest; and (3) prior counsel rendered ineffective assistance. We find no merit in these contentions; and, accordingly, we affirm the judgment of sentence.
Glessner's preliminary arraignment on the Municipal Court charges took place on March 16, 1981. Pursuant to Pa.R.Crim.P. 6013(a)(2), trial on these charges was required to be commenced within 120 days, i.e., on or before July 16, 1981. On April 2, 1981, Glessner collapsed during police interrogation and was committed to St. Luke's Hospital, where he was found to be suffering from viral hepatitis. He remained hospitalized, under medication and paralyzed for much of the time, until October 30, 1981. On November 17, 1981, a hearing on defendant's motion to suppress physical evidence was held and the motion denied; his trial in Municipal Court took place immediately thereafter.
Pursuant to Pa.R.Crim.P. 6013(d)(2)(i),*fn2 the period of Glessner's unavailability for trial must be excluded in computing the time for commencement of trial. Glessner was unavailable for a period of 197 days because he was hospitalized. See: Commonwealth v. Caden, 326 Pa. Super. 192, 201, 473 A.2d 1047, 1051 (1984) (defendants who are hospitalized when seriously ill are deemed unavailable for Rule 1100 purposes). Accord: Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealth v. Quinlan, 259 Pa. Super. 536, 393 A.2d 955 (1978). When the period of 197 days is excluded from the period preceding appellant's trial on November 17, 1981, it is quite clear that appellant's trial was held within the time constraints of Rule 6013. In view of the excludable time, it is unnecessary
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to review the court's order of August 10, 1981, which granted an extension of time within which to commence trial.
After an appeal had been filed in the Court of Common Pleas, an order was entered on April 15, 1982 which extended the time of trial until May 13, 1982. This order was entered with the express agreement of defense counsel who told the court, in Glessner's presence, that the Commonwealth's request had been discussed and would not be opposed. Appellant, therefore, will not be heard to challenge the propriety of this extension order. See: Commonwealth v. ...