No. 504 October Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Div., Crim. Sec., of Philadelphia County, at Nos. 743, 744 November Term, 1973.
S. G. Pollock, Philadelphia, with him Michael J. Stack, Jr., Philadelphia, for appellant.
Maxine J. Stotland and Steven H. Goldblatt, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Price, J., files a concurring opinion in which Spaeth, J., joins.
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Appellant, Fred Brooks, was indicted on the charges of robbery,*fn1 involuntary deviate sexual intercourse,*fn2 aggravated assault,*fn3 corruption of minor,*fn4 criminal conspiracy,*fn5 resisting arrest,*fn6 kidnapping,*fn7 and rape*fn8 pursuant to his involvement in an incident which occurred on October 14, 1973.
The appellant waived his right to be tried by a jury and his trial began on October 2, 1975. At the conclusion of the trial adjudication was deferred until November 13, 1975.
[ 250 Pa. Super. Page 336]
The trial court on that date sustained demurrers to the charges of robbery, rape and involuntary deviate sexual intercourse. Appellant was found not guilty of criminal conspiracy and kidnapping by threat and deception. The Commonwealth nolle prossed the charge of resisting arrest following guilty verdicts on the charges of aggravated assault and corruption of minor. Defense counsel made oral post-verdict motions which included a motion in arrest of judgment and a motion for a new trial on the grounds that the evidence was insufficient to support the verdict and certain res gestae statements were improperly admitted. These motions were denied on November 13, 1975, at which time sentence was imposed. Appellant was sentenced to serve not less than one year nor more than two years in a state correctional institution on the charge of corruption of a minor. This sentence was to run concurrent with the sentence of not less than three and a half years nor more than seven years in a state correctional institution on the charge of aggravated assault. From judgment of sentence, appellant appealed to this Court.
On October 14, 1973, a radio call went out directing officers in the vicinity to report to 1223 Susquehanna Avenue. Officers Ryder and Adams of the Philadelphia Police Department were the first to appear on the scene. They both testified that they entered what appeared to be a vacant building and commenced a search of the premises. In the front room of the third floor, the officers observed a young female completely disrobed except for a pair of socks getting up off the floor. Shortly after observing the young lady, the officers saw the appellant standing in the same room off to the side and starting to leave. The appellant's shirt was open and the zipper of his pants was down. He was apprehended at that time. One of the officers testified that he was standing with the young lady while she was getting dressed when the appellant, in the custody of the police, was brought back into the room. Upon seeing the appellant, the victim stated, "He hurt me". He was subsequently placed in a patrol wagon and transported to the
[ 250 Pa. Super. Page 337]
North Central Detective Division where he was charged with the crimes resulting in his indictments.
Although the appellant was arrested on October 14, 1973, the date of the incident, the complaint was not filed until October 22, 1973. Bail was set at $50,000 which appellant was unable to post. On numerous occasions the case was called to trial, but for reasons, some explained some not, the trial did not actually begin until October 2, 1975. However, on March 10, 1975, defense counsel made oral motions challenging the identification, arrest, and search and seizure. Also at that time an oral motion was made requesting that all of the charges against appellant be dismissed. The basis for this request was that the Commonwealth had failed to bring the appellant to trial within the statutory time limit set forth in Rule 1100*fn9 of the Pennsylvania Rules of Criminal Procedure. Arguments were presented to the trial court both in support of the motion to dismiss the charges and in opposition to the motion. Counsel and the court proceeded by examining each of the entries on the court docket to determine which continuations should be counted in the number of days within which appellant had to be brought to trial and which continuations had to be excluded.*fn10 At no time during the entire proceedings did the Commonwealth
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apply for an extension of time.*fn11 There were approximately seventeen docket entries. Some of the reasons listed appeared to be legitimate requests for continuations. However, some of the entries had absolutely no notation regarding why the case was continued and others contained notations that made it impossible to determine whether the request was made on behalf of the Commonwealth or on behalf of appellant. Examples of such are that on November 6, 1974, the entry simply reads "For status of defense attorney's trial", and the case was continued to November 8, 1974; on January 6, 1975 the block is stamped "both sides ready", however, the case was not called and no notation was entered on the docket. Many of the entries stated "Attorney on trial", but did not distinguish between whether it was defense counsel or the attorney for the Commonwealth. In the middle of the colloquy to figure out what ...