Com. v. Wade

• Court: Superior Court of Pennsylvania
• Writing for the Court: John R. Merrick, Public Defender; Before WATKINS; HOFFMAN
• Citation: 360 A.2d 752,240 Pa.Super. 454
• Decision Date: 22 April 1976
• Parties: COMMONWEALTH of Pennsylvania v. C. Alton WADE, Appellant.

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360 A.2d 752 240 Pa.Super. 454 COMMONWEALTH of Pennsylvania
v.
C. Alton WADE, Appellant. Superior Court of Pennsylvania. April 22, 1976.

[240 Pa.Super. 455] John R. Merrick, Public Defender, J. Graham Andes, Asst. Public Defender, West Chester, for appellant.

Vincent M. Dadamo, West Chester, for appellee.

[240 Pa.Super. 454] Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

[240 Pa.Super. 455] HOFFMAN, Judge:

Appellant contends that he is entitled to discharge because the Commonwealth failed to bring him to trial within the period required by Rule 1100, Pa.R.Crim.P. ¹

On October 3, 1973, appellant was arrested and charged with receiving stolen property. ² The following day, appellant was brought before District Justice Robert G. Mull of Chester County for a preliminary arraignment. Appellant was not represented by counsel at that time, but indicated that he intended to retain Fred T. Cadmus, III, Esquire, to defend him. The District Justice did not fix a time for a preliminary hearing; ³ instead, he asked

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appellant to have Mr. Cadmus contact him in order to arrange a date for the preliminary hearing. During the next month, the District Justice was not contacted by either appellant or Mr. Cadmus. Finally, on November 7, 1973, the District Justice contacted Mr. Cadmus who advised him to 'go ahead and set the hearing.' As a result of that [240 Pa.Super. 456] conversation, the District Justice scheduled the preliminary hearing for December 6, 1973.

According to the testimony of the District Justice, Mr. Cadmus requested that the preliminary hearing be continued until January 15, 1974, and subsequently requested a further continuance until February 1, 1974; both requests were granted. Trial was scheduled for September 11, 1974. ⁴ Prior to trial, however, appellant filed a motion to dismiss pursuant to Rule 1100(f). The lower court held an extensive hearing and denied the petition. Appellant was then tried and convicted. This appeal followed.

The complaint was filed on October 3, 1973, and the trial commenced on September 10, 1974. Thus, 341 days elapsed. The lower court concluded, however, that 72 of those days were chargeable to appellant. According to the lower court's calculations, therefore, trial was commenced on the 269th day of the period. The court's decision is based on three separate findings that appellant was responsible for some portion of the delay. If any of those findings are incorrect, appellant must be discharged.

First, the court held that 28 days of the period from December 3, 1973, to February 1, 1974, must be excluded. If the testimony of the District Justice is credited, this entire delay was occasioned by requests for...