Appeal from Judgment of Sentence Imposed May 6, 1976 in the Court of Common Pleas, Criminal, County of Lehigh, Pennsylvania at No. 1451, 1976.
James B. Martin, Assistant Public Defender, Allentown, for appellant.
Thomas J. Calnan, Jr., Allentown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 248 Pa. Super. Page 540]
On July 26, 1975, a jury returned a verdict finding appellant guilty on two counts each of Robbery*fn1 and Terroristic Threats.*fn2 Subsequently appellant's motions for arrest of judgment or, in the alternative, for a new trial were argued and denied, and appellant was sentenced. This appeal followed in which appellant argues: (1) That his trial commenced more than 180 days after the filing of the criminal complaint, so that the judgments of sentence must be reversed and appellant discharged; (2) That the trial judge improperly expressed his opinion on the credibility of the Commonwealth's eyewitnesses; (3) That the trial judge improperly instructed the jury to consider appellant's interest in the case in evaluating his credibility as a witness. We find no error committed in the court below and will affirm.
On January 30, 1975, at approximately 7:00 P.M., three men entered a leather goods store in Allentown, Pennsylvania. At that time the store's owner, Joel Berman, a clerk, Keith Komernacki, and several customers were present. The customers departed during the thirty or forty minutes' time that the three men were trying on coats, whereupon one of the three revealed a sawed-off shotgun, pointed it at Mr. Berman, and demanded money. Mr. Berman gave the men forty dollars from the cash register, and Mr. Komernacki gave them fifty dollars and his wristwatch. The men then took two shotguns, several coats and left through the store's rear exit.
The facts stated above are the essence of the Commonwealth's proof of the corpus delicti at trial and are not in dispute. Appellant's defense at trial rested on the adequacy and credibility of the identification testimony of Mr. Berman
[ 248 Pa. Super. Page 541]
and Mr. Komernacki which, if believed, established that appellant was one of the three men who had robbed them.
Appellant first argues that the Commonwealth failed to bring him to trial within 180 days as mandated by Pa.R.Crim.P. 1100, 19 P.S. Appendix (1976). We find that this issue was not timely raised and, therefore, was waived. The complaint charging appellant with robbing Mr. Berman and Mr. Komernacki was filed on March 21, 1975, and the jury was chosen, sworn, and given preliminary instructions on September 24, 1975. On September 25, 1975, prior to the Commonwealth's presentation of its evidence, appellant filed a motion to dismiss pursuant to Rule 1100. The court recessed the jury and heard arguments on the motion. Admittedly, the trial had not commenced within the 180 days following the filing of the complaint. However, the Commonwealth argued first that appellant had not timely moved to dismiss under Rule 1100 and, second, that appellant was unavailable for trial for a substantial period of time following the filing of the complaint because the Commonwealth was unable to ascertain his whereabouts.*fn3 We agree that appellant's Rule 1100 claim has been waived.
"At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated. A copy of such application shall be served upon the attorney for the Commonwealth, who ...