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07/30/97 COMMONWEALTH PENNSYLVANIA VS MARSHALL

July 30, 1997

COMMONWEALTH OF PENNSYLVANIA VS MARSHALL BLAIR, APPELLANT


Appeal from the Order dated October 21, 1996 in the Court of Common Pleas of Allegheny County, Criminal No. CC9210434. Before MELVIN, J.

Before: Cirillo, P.j.e., and Johnson and Ford Elliott, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

Filed July 30, 1997

Marshall Blair appeals from an order entered in the Court of Common Pleas of Allegheny County denying his motion to dismiss charges and vacate sentence. We affirm.

Blair was involved in a fight that took place in the Oakland section of Pittsburgh outside of a local college bar. As a result, Blair was tried by a jury and convicted of aggravated assault and simple assault. On February 24, 1993, Blair appeared for sentencing before the Honorable Joan Orie Melvin and was sentenced to twenty-four months to sixty months imprisonment, followed by a ten-year probationary term. *fn1 On March 1, 1993, Blair filed a motion to reduce his appeal bond, which Judge Melvin had set at $50,000.00. This request was denied. The next day, March 2, 1993, bond was posted on Blair's behalf.

While free on bond, Blair filed a notice of appeal on March 19, 1993. In an unpublished memorandum opinion, this court affirmed Blair's judgment of sentence. See Commonwealth v. Blair, 435 Pa. Super. 641, 645 A.2d 885 (memorandum decision 1994). On May 31, 1994, the Superior Court remanded the record in this matter to the Court of Common Pleas of Allegheny County; its receipt was acknowledged on June 7, 1994. At this time, the trial court was under the impression that Blair had already begun to serve his prison sentence. According to the trial court, it was unaware that Blair remained free on bond because his bond papers, which would have alerted the court to the fact that Blair was at liberty and not incarcerated, were missing from the record.

Over two years later, in September of 1996, the Pennsylvania Department of Corrections contacted the trial court to inquire into the status of Blair's direct appeal. Upon investigation, the trial court determined that Blair was not incarcerated. A hearing was held on October 11, 1996, at which time Blair was ordered to begin serving his sentence pursuant to Pa.R.A.P. 1763 (vacation of supersedeas on affirmance of conviction). Additionally, the trial court orally denied a motion filed by Blair to dismiss or, alternatively, vacate his judgment of sentence. Blair then filed a motion to reconsider. On October 22, 1996, the trial court cited a lack of jurisdiction in the matter, and ordered that no action be taken on Blair's motion to dismiss or to vacate sentence. This appeal followed. Blair raises one issue for our consideration:

Whether the appellant is entitled to credit for time erroneously at liberty based on the trial court's failure to comply with the requirements of Pa.R.A.P. 1763?

Initially, we note that Pennsylvania Rule of Appellate Procedure 1763 reads as follows:

RULE 1763. VACATION OF SUPERSEDEAS ON AFFIRMANCE OF

CONVICTION

Unless otherwise ordered pursuant to this chapter, upon the remand of the record in any matter in which the judgment of sentence was affirmed a defendant who has been released pending appeal shall appear in the lower court at such time as the defendant may be there called, and shall be committed by that court until the defendant has complied with the original sentence, or any part thereof which had not been performed at the time the defendant was released pending appeal.

Pa.R.A.P. 1763 (emphasis added). Blair asserts that the trial court's delay of over two years and four months from remand of the record to the date that he was required to begin serving his sentence via Rule 1763 is egregious and warrants relief. Blair asserts that he has been seriously prejudiced by the delay; specifically, Blair contends that he had become gainfully employed, secured his own apartment, purchased an automobile, and was continuing his education when, on October 11, 1996, all of his gains "were ripped away from him . . . when he was required to return to jail[.]" Blair argues that he is entitled to credit for the period ...


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