Commonwealth v. Derrick
| Decision Date | 16 December 1983 |
| Docket Number | 804. |
| Citation | 322 Pa.Super. 517,469 A.2d 1111 |
| Parties | COMMONWEALTH of Pennsylvania v. Allen R. DERRICK, a/k/a Derek Allen, Appellant. |
| Court | Pennsylvania Superior Court |
Argued May 31, 1983. [Copyrighted Material Omitted]
Stanley M. Shingles, Philadelphia, for appellant.
Mariane E. Cox, Asst. Dist. Atty., Philadelphia, for Commonwealth appellee.
Before ROWLEY, WIEAND and CIRILLO, JJ.
This is an appeal from the judgment of sentence of the Court of Common Pleas, Philadelphia County, dated February 17, 1982. Following a non-jury trial, the appellant was convicted of robbery, theft, simple assault and criminal conspiracy. Post-verdict motions were filed and denied, and the appellant was sentenced to not less than 10 nor more than 23 months in prison on the robbery conviction and to two years concurrent probation on the conspiracy conviction. The court suspended sentence on appellant's remaining convictions of simple assault and theft.
Appellant asserts that the failure of the Commonwealth to adhere to the requirement of Pa.R.Crim.P. 1100 mandates his discharge. Additionally, appellant asserts that his arrest was illegal, that physical evidence was improperly seized, and that both the on-the-scene identification of the appellant by the complainant and the subsequent in-court identification were violative of due process. We disagree and consequently affirm the judgment of sentence.
At approximately 8:00 p.m. on March 18, 1980, Isiah Thomas, a 77 year old man, was on his way home from buying a quart of milk at a grocery store at 56th Street and Haverford Avenue when he was grabbed from behind by three young men and pushed to the ground. The assailants took Mr. Thomas's wallet containing his senior citizen identification card and $14.00. The assailants ran off, leaving Mr. Thomas lying on the ground.
Meanwhile, a little after 8:00 p.m., a Philadelphia police officer stopped at 57th Street and Haverford Avenue, saw three young males running out of the 500 block of North 56th Street. The manner in which the young men were running indicated to the officer, an eight-year veteran of the force, that the men were escaping from the scene of a robbery. The officer drove his vehicle around to a position where he could see what the men were going to do. He drove his car diagonally through 57th Street where, upon seeing the police vehicle, one of the young men threw a wallet on the ground. As the young men continued to run, now up Westminster Street off of Haverford Avenue, the officer got out of his car, picked up the wallet and saw that it contained a senior citizen's identification. Observing that the runners were in their late teens or early twenties, the officer pursued them. During this time, the young men were desperately trying to get into a nearby recreation center. The officer arrested the three young men in the recreation center playground and radioed for assistance.
The young men were handcuffed and placed in a police wagon which arrived within minutes of the arrest. Since the recreation center, the scene of the arrest, was one block from where the person whose name appeared on the identification card lived, Isiah Thomas, the police officer took the boys to his residence. After asking Mr. Thomas to identify the money and the wallet, Mr. Thomas was asked to take a look at the males in the back of the police van to see if he could identify them. At that point, Mr. Thomas positively identified the appellant.
The tortuous procedural history of this case is as follows. The criminal complaint was filed on March 18, 1980 and thus the originally projected trial run date was September 15, 1980. Pa.R.Crim.P. 1100(a)(2), 42 Pa.C.S.A. [1] Appellant was released on bail. A pre-trial conference was held on May 5, 1980 and the case was listed for trial on June 24, 1980. However, on June 24, 1980, the public defender representing the appellant was permitted to withdraw because of a conflict of interest. New counsel was then appointed, and the case continued to August 26, 1980. Appellant's counsel was unprepared for trial on August 26, 1980, and the appellant executed a written waiver of his rights under Rule 1100 until October 23, 1980. The case was re-listed for trial on October 16, 1980. Appellant failed to appear for trial on October 16, 1980 and a bench warrant was issued. On October 21, 1980, the Commonwealth timely filed its first petition under Rule 1100(c) [2] to extend the time for commencement of trial. On November 20, 1980, after a hearing, the bench warrant was withdrawn; appellant's bail was reinstated; and appellant was released. Also at that time, new counsel, appellant's third, was appointed and the case was re-listed for December 23, 1980. On December 19, 1980, there being no objection by the appellant, the Commonwealth's petition to extend was granted and the time for commencement of trial extended to January 14, 1981. On December 23, 1980, appellant's counsel requested and was granted a continuance due to his unavailability for trial on that date because of his involvement in another trial. The present case was therefore continued to February 24, 1981.
The Commonwealth timely filed its second petition to extend on January 6, 1981. [3] Appellant's counsel failed to appear at the hearing on the Commonwealth's petition on February 11, 1981, and the court granted the petition and extended the time for commencement of trial to March 18, 1981. The case was listed for trial on February 24, 1981. However, on February 24, 1981 appellant's counsel was permitted to withdraw and the court ordered the court administrator to appoint new counsel. The case was continued to March 10, 1981. Appellant again appeared without counsel on March 10, 1981, no new counsel having been appointed, and the case was continued to May 12, 1981.
On March 16, 1981, the Commonwealth filed its third timely petition to extend. The record shows that on May 12, 1981 the case was again continued to July 21, 1981 due to the unavailability of appellant's newest counsel, his fourth. On May 20, 1981, the Commonwealth's petition to extend was granted and the time for commencement of trial extended to August 12, 1981.
Appellant failed to appear for trial on July 21, 1981 and a bench warrant was issued. The bench warrant was withdrawn on September 2, 1981; appellant's bail was increased to $1,500.00; and the case was relisted for October 23, 1981. Appellant later met the increased bail and was released. Once again, appellant failed to appear for trial on October 23, 1981 and a bench warrant was issued. Later that day it was discovered that the appellant was in custody in Holmesburg Prison on another charge, and the present case was set for trial on October 26, 1981. Appellant appeared for trial on October 26, 1981 without counsel. New counsel was appointed and the case set for trial on December 11, 1981, the earliest possible date consistent with the court's business.
On December 11, 1981, appellant was permitted to make an oral motion to dismiss under Rule 1100(f). [4] Appellant's motion was denied and the case proceeded to trial. [5]
Rule 1100 requires that a defendant be discharged unless all periods of delay beyond the run date are accounted for either by a valid waiver by the defendant, an extension granted the Commonwealth under Rule 1100(c), or an exclusion of time under Rule 1100(d). See Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). Appellant does not challenge the validity of his waiver of rights under Rule 1100 or the granting of the Commonwealth's three petitions to extend. Appellant asserts that the Commonwealth's last extension expired on August 12, 1981 and the Commonwealth did not file another petition to extend. Therefore, appellant argues that unless all the time from August 12, 1981 to December 11, 1981 is excludable under Rule 1100(d), he is entitled to discharge. We agree with the trial court that all the time after August 12, 1981 is properly excludable under Rule 1100(d).
At the time relevant to this case Rule 1100(d) provided:
(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded).
All of the delay from July 12, 1981 to December 11, 1981 is attributable to the unavailability of the appellant of his counsel.
Appellant was free on bail when he failed to appear for trial on July 21, 1981. When appellant failed to appear at that time a bench warrant was issued. The bench warrant was withdrawn on September 2, 1981. In Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978) our Supreme Court said:
We therefore hold that a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.
Appellant had notice of the trial scheduled for July 21, 1981. The record in this case contains a subpoena, receipt of which is acknowledged by the appellant's signature, informing the appellant the trial was scheduled for May 12, 1981. However on May 12, 1981 appellant's counsel requested a continuance which was granted and the case continued to July 21, 1981. Since it was app...
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