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COMMONWEALTH PENNSYLVANIA v. CHRISTOPHER MAIONE (02/06/89)

filed: February 6, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
CHRISTOPHER MAIONE, APPELLANT



Appeal from Judgment of Sentence February 25, 1988, in the Court of Common Pleas of Washington County, Criminal, No. 1050 of 1986.

COUNSEL

Dante G. Bertani, Public Defender, Washington, for appellant.

Almon S. Burke, Assistant District Attorney, Washington, for Com., appellee.

Olszewski, Del Sole and Kelly, JJ. Del Sole, J., concurs. Kelly, J., files a concurring statement.

Author: Olszewski

[ 382 Pa. Super. Page 49]

This is an appeal from a judgment of sentence after appellant was found guilty of aggravated assault and recklessly endangering another person. Appellant makes several allegations of error on behalf of the trial court and the Commonwealth.*fn1 For the reasons stated below, we affirm the judgment of sentence.

The trial court adequately stated the facts as follows:

[ 382 Pa. Super. Page 50]

The facts, as determined during the course of trial begin on the morning of April 12, 1986 at approximately 2:00 a.m. The defendant, Christopher Maione, 25 years old, had departed Smitty's Bar/Restaurant in the Borough of Speers, Washington County, Pennsylvania at closing time. The defendant proceeded across the street to a parking lot in front of Wince's garage where his vehicle was parked. The defendant was then approached by the victim, James Livingstone, 22 years old, and his companion Donald Miller. Mr. Livingstone, an employee at Wince's garage, told the defendant that he shouldn't park there or he would be fined and towed. Words were exchanged, and a brief argument took place between the defendant and Mr. Livingstone. The defendant then drove away alone.

Mr. Livingstone was parked in the parking lot in front of Smitty's Bar. After approximately a minute or so the victim, while beginning to get in his car, observed a vehicle headlights on, approaching. The vehicle continued moving until it stopped in the center of the road across from the victim. The vehicle was driven by the defendant. At that point in time the defendant yelled out from the window of his vehicle for the victim to come over to the car. Mr. Livingstone noticed a second person in the car later identified as one Phillip Jeanmenne, an employee of the Back Porch restaurant located approximately a block away from the scene.

Upon being called by the defendant, Mr. Livingstone began to walk across the front of the vehicle. The victim was not carrying any weapons at the time but did have a leather penknife sheath on his belt approximately three (3) inches long. The knife was not exposed. The defendant's headlights were still on. After the victim had

[ 382 Pa. Super. Page 51]

    walked across the front of the vehicle to the front left corner of said vehicle, the vehicle suddenly revved its motor, turned to the left and accelerated forward. The vehicle knocked the victim to the ground and the front wheels of the car ran over his lower back and the rear wheels ran over his legs. The vehicle then fled the scene, headlights on. The victim's companion, Donald Miller, corroborated the testimony of the victim at trial.

Trial court opinion at 2-4.

On May 15, 1986, appellant was charged with criminal attempt to commit murder, aggravated assault and recklessly endangering another person. Appellant was arrested on July 28, 1986. A preliminary hearing was held on August 29, 1986, and appellant was bound over for court on all charges.

Appellant then filed a motion to suppress identification and an application to quash and dismiss Commonwealth's information under Rule 1100. Both pre-trial motions were denied. Appellant then proceeded to a jury trial on December 1, 1986. On December 5, 1986, appellant was found guilty of aggravated assault and recklessly endangering another person. Post-trial motions were denied, and appellant was sentenced on February 25, 1986, to a term of imprisonment totaling two and one-half to six years. Timely motions to reconsider the sentence were filed and denied. Appellant then filed the instant appeal.

Appellant initially contends that the trial court erred by failing to dismiss the charges against him on failure of the Commonwealth to bring appellant to trial within 180 days in accord with Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. The complaints involved in the case at bar were filed on May 15, 1986. The Commonwealth, therefore, had until November 10, 1986, to bring appellant to trial. On October 24, 1986, however, the Commonwealth filed an application under Rule 1100(c) to extend the time it had to commence trial. On that date the court set a Rule, returnable by November 10, 1986, at which time appellant was to appear and file an answer, which he failed to do. Therefore, the court granted

[ 382 Pa. Super. Page 52]

Commonwealth's application and ordered that trial commence on November 17, 1986. Due to an assignment of another case, however, the trial judge was unable to hear the instant case throughout the remainder of the term. The case was, therefore, rescheduled for the first day of the next trial term, December 1, 1986. On that date appellant filed a pre-trial motion to dismiss pursuant to Rule 1100. At the conclusion of the ...


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