Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, at No. 964 of 1974. NO. 1853 OCTOBER TERM, 1975.
John J. Robinson, Upper Darby, for appellant.
Marc Rickles, Cornwells Heights, and Stephen B. Harris, Warrington, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., files a dissenting opinion in which Hoffman and Spaeth, JJ., join.
[ 245 Pa. Super. Page 148]
Appeal is taken to our Court from judgment of sentence rendered following jury trial and adjudication of guilt on charges of simple assault and conspiracy.*fn1 The charge against appellant and two co-defendants stemmed from an incident of violence in which the three participated while they were maintaining a picket line and attempting to hinder ingress and egress at the Fairless plant of U.S. Steel. The three individuals inflicted bodily injury upon a truck driver leaving the plant grounds. At the commencement of trial on April 3, 1975, the co-defendant named Archer stated his desire to plead guilty, and he was immediately severed from the trial, which proceeded with appellant and the other co-defendant named Headrich.*fn2 Post-trial motions were made on behalf of appellant only, and were denied.
Appellant first raises an allegation of error in that the lower court should have dismissed the charges against him because of a violation of Pennsylvania Rule of Criminal Procedure 1100. The complaint having been filed on February 5, 1974, Rule 1100(a)(1) mandates that trial "shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed." The operative date for trial thus becomes no later than November 4, 1974.
An understanding of all occurrences prior to this date is important. Preliminary arraignment was held on February 5, 1974, and preliminary hearing, on March 18, 1974, before a Bucks County District Justice. The Grand Jury approved bills of indictment on June 25, 1974.
On September 11, 1974, all parties appeared before Presiding Judge Monroe, prepared for trial. The Commonwealth
[ 245 Pa. Super. Page 149]
stated that it had seven witnesses present and was ready to begin; however, counsel for appellant asked for a continuance because he was involved in litigation in Montgomery County, and counsel for Archer also asked for a continuance, joined by counsel for appellant, until such time as record counsel for Headrich (one, Robert Burke, Esq.) should be present or alternate counsel appointed. Judge Monroe refused continuances, stated that the court would move next to the suppression motion pending, and said that "if the suppression hearing is disposed of, then the trial can start tomorrow." Again on September 11, 1974, the parties appeared before Presiding Judge Monroe, this time with Headrich's newly-appointed counsel's (one, Eugene Kestenbaum, Esq., Assistant Public Defender) request for continuance. To this counsel for appellant raised no objection when asked if he had such, and even uttered his own request for a continuance, but the Commonwealth did object because of the presence of witnesses and the continuingly-stated pendency of trial. The request was refused.
On September 12, 1974, Archer's suppression motion, joined in by the co-defendants, was the subject of a hearing. Relief was denied and exceptions noted by hearing Judge Ludwig. The Commonwealth "assume[d] we are going to pick a jury now?" However, while the parties were still before Judge Ludwig, yet another attorney for Headrich, one, John A. VanLuvanee, Esq., approached the bench with a request for continuance because of unfamiliarity with the case. The case was continued until September 30, 1974.
The matter came before Judge Garb for trial on September 30, 1974. A collateral motion was denied, and a stipulation was entered whereby all witnesses would be sequestered and any objection by one counsel would be deemed as on behalf of all ...