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COMMONWEALTH PENNSYLVANIA v. FREDDIE GIBBONS (05/09/88)

submitted: May 9, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
FREDDIE GIBBONS, APPELLANT



Appeal from the Judgment of Sentence of December 14, 1987 in the Court of Colon Pleas of Philadelphia County, Criminal Division, Nos. 8512-3328, 3331, 3332, 3334, 3335, 3337. Nos. 8601-68, 70, 71, 74 8602-451, 453.

COUNSEL

Maryann F. Swift, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, Montgomery and Hoffman, JJ.

Author: Hoffman

[ 379 Pa. Super. Page 288]

This appeal is from the judgment of sentence for robbery, 18 Pa.C.S.A. § 1103, and possession of an instrument of crime, 18 Pa.C.S.A. § 1104. Appellant contends that the trial court erred in (1) denying his motion to dismiss under Pa.R.Crim.P. 1100; (2) granting the Commonwealth's motion to consolidate six separate cases for trial; (3) denying his motion to suppress evidence seized during a consent search of appellant's home; (4) excusing a juror; and (5) refusing to charge the jury to view identification testimony with caution. Appellant also contends that the court abused its discretion in imposing an excessive sentence. For the reasons set forth below, we affirm the judgment of sentence.

On December 13, 1985, appellant was arrested and charged with six counts of robbery and six counts of possession of an instrument of crime. The charges stemmed from six separate incidents that occurred over a three month period in 1985. The Commonwealth filed, and the court below granted, a motion to consolidate the six cases on the basis that they involved a common scheme. Following a jury trial, appellant was found guilty of all charges. Post-trial motions were filed and denied. Appellant was sentenced to an aggregate term of twenty-one-to-forty-two years imprisonment. This appeal followed.

Appellant contends initially that the court erred in denying his pre-trial petition to dismiss under Rule 1100. According to appellant, Rule 1100 requires that all requests for extension of trial date must be in writing. Specifically, appellant argues that because the Commonwealth orally

[ 379 Pa. Super. Page 289]

    amended its petition and failed to file a written amendment as required by Rule 1100, the Commonwealth did not comply with the requirements of Rule 1100. We disagree.

Pennsylvania Rule of Criminal Procedure 1100 sets forth the prompt trial requirement and provides in relevant part:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant . . . shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Id. Rule 1100 mandates that a defendant be discharged unless all periods of delay beyond the one-hundred-eighty day run date for the commencement of trial are attributable to either an extension granted to the Commonwealth or an exclusion of time resulting from either the unavailability of defendant or counsel, or a continuance chargeable to the defense. Pa.R.Crim.P. 1100(c)(1) and (d)(3). See also Commonwealth v. Lafty, 333 Pa. Super. 428, 433, 482 A.2d 643, 645 (1984).

Prior to the expiration of the date scheduled for the commencement of trial, the Commonwealth may apply to the court for an order extending the trial date. Pa.R.Crim.P. 1100(c)(1). "Where the Commonwealth, despite due diligence, cannot timely bring a defendant to trial because of judicial delay, the court properly may grant an extension." Commonwealth v. Colon, 317 Pa. Super. 412, 420, 464 A.2d 388, 392 (1983). Once the Commonwealth has filed a petition for an extension, it may orally amend the existing petition provided that notice was given to defendant at the time of the filing of the initial petition. Commonwealth v. Smith, 348 Pa. Super. 81, 90-91, 501 A.2d 656, 661 (1985).

Here, the written complaint against appellant was filed on December 10, 1985, and the run date for the commencement of trial was June 11, 1986. Appellant's trial, however, did not commence until October 7, 1987, five-hundred-eighteen days after the complaint was filed. The running of the one-hundred-eighty-day period was initially tolled for four months by the unavailability of the trial judge. See Commonwealth v. Colon, 317 Pa. Super. at 420, 464 A.2d at 392.

[ 379 Pa. Super. Page 290]

In addition, because of several requests for continuances and defense counsel's unavailability as a result of other trial commitments, appellant concedes, in his brief, that two-hundred-twenty-eight days are excludable from the computation. See Pa.R.Crim.P. 1100(d)(3)(i) and (ii).

In response to the judicial delay, the Commonwealth filed a written petition requesting additional time for trial premised on the preparation time necessary to accommodate the consolidation of the six cases. The petition was timely filed and served on appellant and it maintained how the Commonwealth was diligent in attempting to bring appellant to trial despite the court's and defense counsel's scheduling problems (the court's four month unavailability and the withdrawal of initial counsel). See Commonwealth v. Colon, 317 Pa. Super. at 420, 464 A.2d at 395. The court granted the petition.

On three subsequent occasions, the Commonwealth orally amended its petition. The grounds for the amendments included a defense request for a continuance, unavailability of defense counsel, and judicial delay. See Commonwealth v. Smith, 348 Pa. Super. at 91, 501 A.2d at 661. The court granted the amendments and again extended the date for trial. We note that the Commonwealth's oral amendments were not separate entities from the original petition, but requests to enlarge the period of time as a primary result of the court's and defense counsel's scheduling problems. See id. Thus, because the Commonwealth previously filed a written petition meeting all the requirements of Rule 1100, the oral amendments were permissible. See id.

Accordingly, because the amendments were not new requests but "merely . . . reasonable amendment[s] to the existing petition which previously established the Commonwealth's diligence and provided appellant with the requisite notice." id., the Commonwealth's oral amendments were not improper.

Additionally, appellant's claim is without substance because after deducting the excludable and extendable time from the period of time between the filing of the complaint and the ...


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