No. 893 OCTOBER TERM, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Div., Crim. Sec., of Philadelphia County, at No. 1963 June Session, 1975.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
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On October 31, 1975 a jury found the defendant William Jones guilty of the charges of Possessing Instruments of Crime, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 907, Aggravated Assault, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 2702 and Criminal Conspiracy, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 903. Post trial motions were filed and denied by the court below. Appellant was subsequently sentenced to serve a term of not less than five years nor more than ten years in
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the State Correctional Institution on the charge of aggravated assault. Sentence on possession of instruments of crime and conspiracy were suspended. From that judgment of sentence appellant appealed to this Court.
On March 23, 1975, police officer Robert Stewart, who was off duty at the time in question, was driving his automobile east on Oakdale Street at 25th Street when he looked down Harold Street to see if any traffic was approaching. What Officer Stewart did observe was a fight between two negro males and one white male. The white male, later determined to be the victim, Mr. Edward Jones, was being held between the two assailants, one of which had a hammer in his hand. The officer testified that he jumped out of his car and started to run down the street towards the individuals. As he approached them, he saw one of the assailants hit the victim on the back of the head with the hammer. The officer yelled, although it is not clear what he yelled at that time. One of the two assailants turned around and looked at the officer who was approximately 30 to 40 feet away at this time, and both of them started to run. The police officer testified that he recognized the individual who struck the victim with the hammer when he looked up at the time the officer yelled. The officer further testified that the appellant was not unfamiliar to him because he had worked in that area for six years and had seen appellant before, although he did not know him personally. The only name the officer knew the appellant by was Butch. After yelling at the two, the officer gave chase. The two split up and the individual known to the officer as Butch ran east on Huntingdon Street until he got to the corner where he fell. The officer testified that the appellant again turned around to see how close he was to him which was approximately 15 or 20 feet. At that time the officer got another chance to observe the appellant, who got up and continued to run still carrying the hammer with him. The officer, realizing he would be unable to apprehend the appellant, gave up the chase and returned to the victim, who he observed as having a big gash in the back of his head. By this time other
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uniformed police officers had arrived and Officer Stewart informed them of what he had observed and that one of the assailants was known as Butch and he lived in the 2400 Block of Sergeant Street.
The criminal complaint in this case was filed on March 25, 1975, two days after the incident, however, the appellant was not arrested until June 9, 1975. The reason for this delay was that appellant left Philadelphia sometime after the incident and his whereabouts were unknown to the police until May 8, 1975 when they received information that he had gone to Georgia. Appellant was arrested in Valdosta, Georgia on June 7, 1975, waived extradition and was returned to Pennsylvania where he was arrested by the Philadelphia Police on June 9, 1975. His preliminary hearing was on June 16, 1975, at which time he was held for court on the charges of robbery, simple assault, aggravated assault, conspiracy and possession of an instrument of crime and bail was set at $50,000.00. The case was originally scheduled to go to trial on August 25, 1975, but defense counsel requested a continuation for the purpose of conducting a further investigation. The case was then listed for September 25, 1975 at which time defense counsel made a motion to dismiss the charges under Rule 1100 of the Pennsylvania Rules of Criminal Procedure, infra. The motion was argued and denied. Judge Richette ordered that the trial commence prior to December 8, 1975. Appellant's trial started October 29, 1975 and the jury returned the guilty verdict on October 31, 1975.
The first argument appellant offers is that the charges should have been dismissed pursuant to Rule 1100. The pertinent parts of that Rule state:
(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
(b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial.
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(d) In determining the period for commencement of trial there shall be excluded therefrom such period of delay at any stage of ...