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COMMONWEALTH PENNSYLVANIA v. JOSEPH MALLON (08/07/86)

filed: August 7, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOSEPH MALLON, JOHN MATTERO, WILLIAM SWEENEY, KURT HECKER, AND JOHN HARTUNG, APPELLEES



Appeal by the Commonwealth of Pennsylvania from the Orders dated April 1, 1985 in the Delaware County Court of Common Pleas, dismissing informations docketed at Nos. 6116, 6117, 6118, 6119, and 6120 of 1984.

COUNSEL

Robert A. Graci, Harrisburg, for Com., appellant.

Robert W. Auve, Chester, for Mallon, appellee.

Arthur T. Donato, Jr., Media, for Mattero, appellee.

Steven C. Leach, Newtown Square, for Sweeney, appellee.

James P. McHugh, Chester, Bala Cynwyd, for Hartung, appellee.

William A. George, Media, for Hecker, appellee.

Olszewski, Tamilia and Kelly, JJ.

Author: Kelly

[ 356 Pa. Super. Page 494]

This case involves an appeal by the Commonwealth of an Order dismissing the criminal informations filed against each of the five defendants. The lower court found that further prosecution was barred by Pennsylvania Rule of Criminal Procedure 1100, which limits the time within which a criminal defendant must be brought to trial. We hold that the 180-day period set forth in Rule 1100 had not lapsed; we therefore reverse and remand the cases for further proceedings consistent with this Opinion.

The pertinent facts giving rise to this appeal are as follows. In early 1984, the Office of Attorney General, Bureau of Criminal Investigations, initiated an investigation into a possible bookmaking and sports gambling operation in Delaware County and the surrounding area. Application for telephone pen register devices, followed by applications for electronic surveillance of the telephone lines, were approved. The conversations recorded purportedly reflected a sports gambling operation involving each of the five appellees herein. On April 5, 1984, pursuant to search warrants, agents searched several homes and seized certain records. During the searches, each of the appellees was served with a subpoena ordering him to appear on April 25, 1984 before an investigating grand jury sitting in Harrisburg.*fn1 The appellees invoked the Fifth Amendment privilege when they appeared before the grand jury.

On September 20, 1984, the grand jury returned presentments against the appellees. The presentments, which recommended

[ 356 Pa. Super. Page 495]

    that the Attorney General institute criminal proceedings, were approved by the grand jury judge and submitted to the Attorney General. The Commonwealth filed criminal complaints against each of the five appellees on October 11, 1984, and the appellees were arrested. Appellee Hartung filed a motion to dismiss on March 17, 1985, which the other appellees joined; the appellees contended that the time for trial provided in Rule 1100 had lapsed. Trial was scheduled to commence on April 1, 1985. On that date, ...


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