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COMMONWEALTH PENNSYLVANIA v. ROY GRAY BOND (10/15/87)

decided: October 15, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROY GRAY BOND, APPELLEE



Appeal from the Order of the Superior Court Entered on January 10, 1986, at No. 1456 Pittsburgh, 1984, Reversing the Judgment of Sentence of the Court of Common Pleas of Clearfield County, Pennsylvania Criminal Division, at No. 82-625-CRA, Entered on October 24, 1984.

COUNSEL

Thomas F. Morgan, Dist. Atty., Joseph A. Curcillo, III, Asst. Dist. Atty., Clearfield, for appellant.

John R. Ryan, Colavecchi & Ryan, Clearfield, for appellee.

Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case. Flaherty, J., joins the Majority Opinion. McDermott, J., files a concurring opinion. Larsen, J., files a concurring opinion. Zappala, J., files a dissenting opinion. Hutchinson, J., dissents without an opinion.

Author: Papadakos

[ 516 Pa. Page 173]

Opinion ANNOUNCING THE JUDGMENT OF THE COURT

In this appeal, we are asked to rule on the interrelated issues of whether a trial court's judicial notice of its own calendar establishes a record for purposes of granting continuances to the Commonwealth averring due diligence

[ 516 Pa. Page 174]

    under Pa.R.Crim.P. 1100(c), and whether a defendant is required to file specific, rather than general, objections to Commonwealth motions for such continuances.

In a complaint signed on October 2, 1982, Appellee was charged with theft of a motor vehicle and receiving stolen property. The run date (the 180-day limit) was April 6, 1983.

In Clearfield County, the district attorney schedules the court's criminal case docket. The district attorney scheduled the Appellee's case for trial during the weeks of March 14 and March 21, 1983, but was not reached for trial. On April 6, 1983, the district attorney filed a Petition for Extension of Time and specified that "due to the number of cases scheduled during those weeks and the unavailability of the courtroom since it was being utilized with other cases from the criminal list in order of priority in accordance with Rule 1100 the Commonwealth was unable to dispose of this case during the above weeks." At the presentation of the petition, the district attorney reiterated that the Appellee could be tried "but for the fact that other cases with more serious Rule 1100 limitations were called before the Court and with the court's limited criminal court terms this could not be accomplished." The court granted the motion, and trial was rescheduled for June 11, 1983. Defense counsel objected to the extension without elaboration.

On June 8, 1983, the district attorney once again petitioned the trial court for another extension. In support of his motion, the district attorney pointed out that the Appellee had been tried earlier on a different complaint during the week of May 23, 1983, and that a jury for this case could not have been selected from the same panel. The petition formally stated in pertinent part:

5. That this case was scheduled for criminal court during the weeks of March 14 and 21, 1983. Due to the number of cases scheduled during those weeks and the unavailability of the courtroom since it was being utilized with other cases from the criminal list in order of priority

[ 516 Pa. Page 175]

    in accordance with Rule 1100, the Commonwealth was unable to dispose of this case during the above weeks.

7. That this case was scheduled for criminal court during the weeks of May 16 and 23, 1983. The defendant was tried on another criminal matter, case number 82-637-CRA, during the week of May 23, 1983, and a jury could not be selected on this case from the same panel. Therefore, the Commonwealth was unable to dispose of this case during the May, 1983 Term of Criminal Court.

8. That this case will be rescheduled for criminal court during September, 1983.

At the hearing on this petition, the court again granted the motion with the clear understanding that trial would take place before October 15, 1983. The defense once again formally objected to the motion without specificity. Trial then was set for October 5 of that year, and a jury was selected to hear the case.

The Appellee failed to appear for trial, and a bench warrant was issued for him. On October 7, 1983, the Commonwealth was notified that Appellee had been arrested by Maryland authorities, and the Commonwealth initiated extradition proceedings. Because the Appellee failed to appear for trial, the district attorney, on October 13, 1983, successfully obtained another extension, citing the defendant's fault as the basis for the motion. Evidence was also placed before the court that the defendant was ...


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