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decided: November 22, 1976.


Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 1090, 1091, 1093, 1095 March Term, 1974. NO. 1558 OCTOBER TERM, 1975.


Arthur L. Gutkin, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Van Der Voort

[ 245 Pa. Super. Page 19]

Appeal is taken to our Court from judgment of sentence rendered after a jury trial and adjudication of guilt to indictments charging criminal conspiracy, kidnapping, aggravated assault, and possession of instruments of crime.*fn1 Post-trial motions were filed and denied, thus preserving questions raised for our review.

A short factual history of the case, the evidence being considered in a manner most favorable to the verdict winner, is as follows: On the night of June 28, 1973, Clifford Walker was visiting a house occupied by Dianna Frank, her two children and one Roxanne Willock. He had been going there to buy drugs. Police suddenly appeared in front of this house. Walker and Roxanne ran

[ 245 Pa. Super. Page 20]

    out of the back door, climbed over a fence and went together to Walker's apartment two blocks away. They stayed in his apartment until the early hours of the morning of June 29, 1973, during which period of time they engaged in sexual relations. Walker escorted Roxanne home that morning and went to work. Around 5:00 p. m., that afternoon Walker returned to Dianna Frank's house to visit. He made his way into the kitchen. Roxanne locked the doors. Suddenly appellant, identifying himself as Roxanne's boyfriend, entered the kitchen and confronted Walker with the accusation that Walker had raped Roxanne. She confirmed the accusation. Walker admitted he had had an intimate affair with Roxanne but denied raping her. Nevertheless appellant began to mete out a night of horror. Appellant drew a knife on Walker, tied him about the legs and neck, and began to threaten death and castration. Boiling water was poured on Walker's naked body, then salt and pepper was shaken thereupon. Two neighbors were called over for the "party", as it was described. This torture continued, interspersed with kicking all parts of Walker's body, repeated threats of death with knives and guns, and the jamming of a broomstick into Walker's rectum. Appellant and his cohorts placed Walker in a van and drove about for some hours, ending the trip on a bridge over Crum Creek in Swarthmore, Delaware County. Thereupon Walker was thrown into the water, and in the water he was sufficiently alert to duck under the surface until he believed his captors had driven away. He reached shore and received help at a near-by apartment complex. Walker was hospitalized for approximately two months.

Appellant's first allegation of error is that the lower court should have granted his request for dismissal pursuant to Pa.R.Crim.P. 1100. A hearing was held on this motion on October 29, 1974. A criminal complaint had been filed on July 2, 1973. Testimony from the

[ 245 Pa. Super. Page 21]

    hearing shows that appellant had fled and Philadelphia authorities sought appellant through the means of the F.B.I., and a fugitive flight warrant. Appellant was apprehended in Virginia on August 2, 1973, and returned to Delaware County and there lodged in jail on August 3, 1973. It thus is clear that appellant was unavailable for 31 days and nothing could proceed on the case in question during that time. The case of Commonwealth v. Lewis, 237 Pa. Super. 357, 352 A.2d 99 (1975), relied upon by appellant, is factually inapposite because therein the unavailability of the defendant did not affect the case there pending. The case clearly mandates that "it is only those absences of the defendant or his attorney which caused a delay in the proceedings of the case in question which can be excluded pursuant to Rule 1100(d)." [Emphasis theirs.] Lewis, ibid., 237 Pa. Super. at 360, 352 A.2d at 101. Such a period was properly found excludable. Instantly the 31 days from July 2, 1973 to August 3, 1973 are excluded from the 270 day period.

Testimony of the Philadelphia Detective in charge of the case shows that from August 3, 1973, to October 9, 1973, numerous phone calls to the Delaware County authorities satisfied him that appellant was seriously ill and hospitalized. During this period appellant had a kidney removed. This is a valid reason for one's unavailability and is properly excludable under Rule 1100(d). Sixty-seven more days are excluded because of appellant's unavailability. Thus a total of 98 days are excluded, and the operative date for the commencement of trial, under Rule 1100, is extended by that number of days, placing the date for required trial at July 5, 1974, well beyond the originally-applicable date of March 29, 1974, which is 270 days after the ...

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