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COMMONWEALTH PENNSYLVANIA v. JOSEPH BURKE (04/16/85)

submitted: April 16, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH BURKE, APPELLANT



Appeal from the Judgment of Sentence of March 28, 1984, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 83-04-310 & 311.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Beck and Cercone, JJ.

Author: Beck

[ 344 Pa. Super. Page 290]

Appellant contends that the lower court erred in granting the Commonwealth's petition for extension of time pursuant to Pennsylvania Rule of Criminal Procedure 1100.

Rule 1100(a)(2) provides:

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.

On March 25, 1983, a criminal complaint was filed against appellant, resulting in a Rule 1100 run date to September 21, 1983. The case was scheduled for trial on June 1, 1983 but because the Commonwealth was not ready to proceed

[ 344 Pa. Super. Page 291]

    and there was an outstanding motion to quash the information before the Motions Court, the case was continued until September 9, 1983. At the September 9 trial date, the case was continued until November 25, 1983, the earliest possible date, because one Commonwealth witness was on vacation and a second Commonwealth witness had a medical problem.

Rule 1100(c) provides in part:

At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot ...


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