first requirement met where court had ordered motion to be heard “on the date of trial, immediately prior to trial”
How later courts described this case
- first requirement met where court had ordered motion to be heard “on the date of trial, immediately prior to trial”
- and cases cited therein
Written by the judges who cited it.
The opinion
SHERTZ, Judge,
concurring:
I agree with the result reached by the majority. However, rather than reach the issue of whether or not Appellant was tried within the period mandated by Rule 1100, Pa.R.Crim.P., I would affirm on the basis of insufficiency of the evidence.
The. test of sufficiency of evidence is whether, accepting as true all the evidence presented by the prosecution and all reasonable inferences therefrom, which if believed, the jury could properly, base its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime.
Commonwealth v. Smith, 283 Pa.Super.Ct. 360, 365 , 423 A.2d 1296, 1298 (1981).
Instantly, Appellant was found guilty of operating a lottery. 1 At the time of his arrest, numbers slips indicating a total play of more than $3,000, together with currency totalling from $1,600, were discovered in Appellant’s possession. These alone, however, were not sufficient to convict Appellant. As this Court stated in Commonwealth v. Lane, 242 Pa.Super.Ct. 283 , 363 A.2d 1271 (1976):
*347 In Commonwealth v. Bondi [ 217 Pa.Super. 133 , 269 A.2d 398 ] supra, the defendant was found to be in possession of a card with 43 bets on it. In spite of the large number of bets, this Court held that without evidence as to whether the card was a writer’s card or a player’s card, the defendant’s conviction for operating a lottery could not be sustained. In the present case, there was simply no evidence as to whether the slips possessed by appellant were those of a writer or those of a player. Normally the Commonwealth presents testimony of an officer familiar with lottery operations as to whether the slips possessed were writer’s slips .... However, the lack of such testimony was fatal in this case.
Id., 242 Pa.Super. at 287 , 363 A.2d 1273 (citations omitted). The same evidentiary deficiency was present and is similarly fatal in the instant case. Accordingly, I concur.
. Pursuant to 18 Pa.Cons.Stat.Ann. § 5512 (Purdon 1973).