Gerald E. Ruth, York, for appellant.
Donald L. Reihart, Dist. Atty., Sheryl Ann Dorney, York, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
On June 12, 1974, appellant, Edward R. Vaughn, Sr., was arrested and charged with homicide for the slaying of one Jay Zarilla, and with aggravated assault and battery against appellant's wife. Both charges arose from the same episode.
Both the homicide and the assault and battery charges were scheduled to be tried on August 19, 1974, in York County Criminal Court. The cases were severed when appellant sought a protective order to prohibit his wife from testifying against him in the homicide case. Appellant did not request the severance. He did, however, request that both cases be continued to the October, 1974, term of criminal court. On October 29, 1974, the case charging aggravated assault and battery was called to trial. During the trial, the victim (appellant's wife) fainted, and the Court ordered a mistrial.
The assault and battery charge was then scheduled to be tried during the next criminal court session, commencing January 13, 1975. When called to trial, the case was continued at the request of the prosecution. Appellant was again tried on the aggravated assault and battery charge on March 24, 1975, and was acquitted.
On May 2, 1975, appellant filed an application pursuant to Pa.R.Cr.P. 1100 for dismissal of the homicide complaint, alleging that the prosecution had failed to commence trial on that charge within 270 days as required by Rule 1100. (Because the complaint against appellant was filed prior to July 1, 1974, the relevant period of time under Rule 1100(a)(1) is 270 days.) A hearing was held on May 9, 1975, and the application was denied. Appellant's trial on the homicide charge commenced on May 12, 1975, and on May 16, 1975, he was found guilty of voluntary manslaughter. Post-verdict motions were denied and this appeal followed.
The prosecution argues initially that the issue of the propriety of the denial of appellant's Application for Dismissal under Rule 1100 is not properly before us ". . . as Defendant abandoned it at argument on post-trial motions. . . ." The trial court also held such belief, stating in its opinion denying appellant's post-verdict motions that
"[d]efendant's motion was based on a large number of grounds but he briefed only eight of them and we, therefore, consider the rest of them abandoned. We note parenthetically that among those grounds abandoned were the Court's ruling against him on issues involving Rule of Criminal Procedure ...