No. 718 October Term, 1977, Appeal from Judgment of Sentence by the Honorable Robert A. Wright in the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, as of Nos. 213, 214, 216, 217, 218, 221, 228, 229, 231, 232, 233, 235 and 236, May Session 1974.
Roy H. Davis, Assistant Public Defender, Drexel Hill, for appellant.
D. Michael Emuryan, Assistant District Attorney, Media, with him Frank T. Hazel, District Attorney, Media, for Com., appellee.
Watkins, President Judge, and Jacobs, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., dissents and would discharge appellant, the Commonwealth did not prove by a preponderance of the evidence that appellant was unavailable for trial under Pa.R.Crim.P. 1100(d)(1), so appellant should have been tried within 270 days. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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This appeal arises from the conviction of appellant for robbery and other related crimes by a jury in Delaware County. Appellant's motions for new trial and arrest of judgment were denied.
Three armed robberies were committed in Delaware County in January, 1974. Similar robberies were also committed in neighboring Chester County that same month. After receiving photos of defendant from authorities in Chester County where appellant and another accomplice were incarcerated in connection with the robberies there, the Delaware County police filed a complaint against defendant on January 27, 1974. A hearing on petitions to suppress evidence and dismiss the indictments was not held until January 13, 1975, and a trial, involving the defendant and co-defendant, Smith, followed the next day. Defendants were convicted and sentenced.*fn1
Appellant's brief raises two issues before us: first, whether the lower court erred in denying appellant's petition to dismiss under Pa.R.Crim.P. 1100, and two, whether the lower court erred in denying appellant's petition to sever the trial of this robbery from that of another robbery charged against him. Before we discuss these issues, we will comment on whether or not the issues were properly preserved for our review.
We have before us the classic example of an incomplete and vague record of the events in the lower court. According to the Commonwealth's brief, a petition for rule to dismiss the indictments under Pa.R.Crim.P. 1100 was filed by the defendants in November, 1974. We do not have that petition before us nor is that fact reflected in the docket entries. However, on the date of the suppression hearing, January 13, 1975, the lower court judge apparently entertained such a petition, along with an alleged petition to
[ 256 Pa. Super. Page 460]
sever the trial of the separate cases on the robberies. Counsel for William Kirkpatrick, an accomplice to appellant in the third robbery in Delaware County, moved to sever his client's case from the trial of appellant, Clark, and co-defendant, Smith, who were allegedly involved in two earlier robberies. Appellant's counsel neither joined nor made a specific exception to the ruling of the court that severed the Kirkpatrick-Clark case and which consolidated the Smith-Clark cases for trial.
At the completion of trial and entry of verdict, the record reflects that on the same day, January 23, 1975, oral motions for new trial on behalf of appellant were presented after the judge had properly given his instruction concerning written post-trial motions. Pa.R.Crim.P. 1123(a). We have no record of these oral motions. On January 29, 1975, boiler plate motions for new trial were filed and argued in May. However, the opinion of the lower court refers to specific points on Rule 1100 and severance as being "filed" with ...