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COMMONWEALTH PENNSYLVANIA v. FRANK NELLOM (05/15/89)

submitted: May 15, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK NELLOM, APPELLANT



Appeal from the Judgment of Sentence of October 12, 1988 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 87-04-1271 and 1273.

COUNSEL

Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Cavanaugh, Popovich and Hoffman, JJ.

Author: Hoffman

[ 388 Pa. Super. Page 316]

This is an appeal from a judgment of sentence for rape and involuntary deviate sexual intercourse. Appellant contends, inter alia, that the trial court erred in (1) granting the Commonwealth an extension of time under Pa.R.Crim.P. 1100, and (2) ruling that appellant's character witness could be cross-examined as to her knowledge of his prior robbery conviction.*fn1 For the following reasons, we agree with appellant's second contention and, accordingly, we vacate the judgment of sentence and remand for a new trial.

On March 28, 1987, appellant was arrested for robbery, rape, and involuntary deviate sexual intercourse arising out of an incident at the Pleasure Chest, an adult boutique in Philadelphia. On October 20, 1987, appellant was convicted by a jury of robbery, but because the jury was "hopelessly deadlocked" on the remaining charges, a mistrial was declared on those charges. Following the denial of appellant's post-trial motions on the robbery charge, he was sentenced to a one-to-four-year term of imprisonment.

Appellant's retrial on the rape and IDSI charges was initially listed for December 14, 1987. The trial was continued a number of times, and, on March 2, 1988, the Commonwealth filed a petition to extend the date for retrial pursuant to Rule 1100(c)(1). The court delayed decision on the petition until the time of trial. Appellant came to trial on May 9, 1988, and a hearing was held on the Commonwealth's petition. On that same day, the court granted the petition, the run date was extended to June 1, 1988, and

[ 388 Pa. Super. Page 317]

    appellant proceeded to trial. On May 10, 1988, following a trial by jury, appellant was found guilty of rape and IDSI. Post-verdict motions were filed and denied. On October 12, 1988, appellant was sentenced to an aggregate term of imprisonment of twelve-to-thirty years.*fn2 On October 18, 1988, appellant filed a Petition for Reconsideration of Sentence. This appeal followed the denial of the petition with present counsel appointed to replace trial counsel.

Initially, appellant contends that the trial court erred in granting the Commonwealth's petition for an extension of time pursuant to Pa.R.Crim.P. 1100. Appellant notes that, under Rule 1100(e)(1), the Commonwealth had 120 days in which to bring him to trial.*fn3 Appellant argues that, because a new trial did not commence until May 9, 1988, well beyond the February 16, 1988 mechanical run-date, and because the Commonwealth did not prove due diligence in bringing him to trial pursuant to Rule 1100(c)(3),*fn4 he is

[ 388 Pa. Super. Page 318]

    entitled to be discharged. The Commonwealth, on the other hand, maintains that they were properly granted an extension because the undisputed evidence in the record establishes that they were duly diligent in proceeding to try appellant because the delays beyond the 120 days were caused by appellant's requested continuance, his failure to be brought down, and judicial backlog. We agree.

In Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), our Supreme Court stated:

[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the "due diligence" of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record ...


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