No. 121 March Term, 1977, Appeal from the Judgment of Sentence imposed on April 22, 1976, by the Court of Common Pleas of Dauphin County, Criminal Division at No. 2131, 1975.
Edward S. Finkelstein, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a concurring and dissenting opinion in which Jacobs, President Judge, joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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Following a jury trial, appellant was found guilty of unlawful delivery of a controlled substance,*fn1 namely heroin. Appellant's motions for a new trial and in arrest of judgment were denied by the lower court. Appellant was sentenced to undergo imprisonment for not less than five nor more than ten years and to pay a fine of $1,000.00 and the costs of prosecution.
Appellant raises several contentions, the first of which is that he is entitled to be discharged because his right to a speedy trial under Pa.R.Crim.P. 1100(a)(2)*fn2 was violated. Facts necessary for resolution of this issue are the following. On June 27, 1974, a Pennsylvania State Police undercover agent, James Petti, went with a confidential informant to the home of an alleged drug dealer known as "Sidney." The officer spoke briefly with Sidney, and a $150.00 sale was completed. This transaction was part of an extensive narcotics investigation conducted by the Commonwealth in Dauphin County. Sometime after the June transaction, but before the investigation's completion, Petti returned to Sidney's residence and learned that he had moved. The investigation culminated in a January, 1975, raid in which forty-three persons were arrested and charged with violations of
[ 256 Pa. Super. Page 370]
the narcotics laws. A complaint was filed and an arrest warrant was issued for "Sidney" on January 14, 1975. State police were without additional identification information or knowledge of Sidney's whereabouts.
Petti was transferred from Dauphin County at the conclusion of the investigation, but returned six to eight times attempting to locate Sidney. On these occasions he conducted a surveillance of known drug traffic areas in Harrisburg. He also examined photographs supplied by the Harrisburg Police Department, and during June, 1975, he finally identified a photograph of Sidney. Thereafter, the coordinator of the Commonwealth investigation spoke with a Detective Stevenson, from the Harrisburg Police Department, who was familiar with those involved in the local drug traffic. Stevenson knew Sidney, who was identified as appellant, Moses W. Jones, and he advised the Commonwealth that Jones was then living in Philadelphia. Stevenson agreed to help locate appellant, who occasionally visited the Harrisburg area. Unfortunately, neither Stevenson nor his contacts were able to lead the Commonwealth to appellant. On August 6th, a second criminal complaint, identical to the first, was filed against appellant.
During the week of August 11, 1975, a state trooper, George Wynn, learned from superiors that appellant was being sought. After viewing appellant's photograph, Wynn realized that he had seen Jones in July, 1975, during his investigations in Harrisburg. Wynn learned from an informant that appellant visited the area on weekends. Finally, on August 18, 1975, an arrest was made after the informant saw appellant and contacted Wynn.
On January 2, 1976, appellant moved to quash his indictment for violation of Rule 1100(a)(2). The motion was denied after a hearing on January 21, 1976, and a jury trial was held that day.
The first and second complaints lodged against appellant were substantively identical. There was no need for the Commonwealth to ...