No. 454 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1644-1651 and 1811-1814, May Sessions, 1975.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 63]
Following a jury trial commenced on March 2, 1976, appellant was convicted of two counts of burglary,*fn1 four counts of robbery,*fn2 three counts of rape,*fn3 involuntary deviate sexual intercourse,*fn4 possession of an instrument of crime generally,*fn5 and criminal conspiracy.*fn6 Appellant had been tried on two sets of indictments arising out of two separate incidents occurring on April 20, 1975. Sentence was deferred pending pre-sentence reports and psychiatric examination. Post-trial motions for new trial, in arrest of judgment, and for dismissal under Pa.R.Crim.P. 1100 were denied. Sentence was imposed on November 9, 1976.
[ 260 Pa. Super. Page 64]
On appeal, appellant contends that it was error for the lower court to deny his: 1). application to dismiss under Pa.R.Crim.P. 1100; 2). petition to dismiss indictments; and 3). challenges for cause with respect to two jurors who stated that they would have difficulty being fair and impartial.
We agree with appellant's contention that he was not timely tried under Rule 1100, and therefore order judgment of sentence vacated, and appellant discharged.*fn7
The facts important to our consideration of the Rule 1100 issue are as follows: In the early morning hours of April 19, 1975, three armed men intruded into the apartment of complainant, and raped and robbed her and two female friends who were with her at the time. The three men then proceeded to rob complainant's neighbor who resided across the hall. Appellant was arrested on April 21, 1975, and complaints were filed against him at that time. The May, 1975 Grand Jury returned two sets of indictments on appellant (Nos. 1644-51 and 1811-14) charging him with rape, involuntary deviate sexual intercourse, burglary, robbery, conspiracy, and possessing instruments of crime. The two sets of indictments took different courses through the judicial system. By December 2, 1975, after periods of delay excluded under Rule 1100(d) or waived by appellant, and extensions granted to the prosecution under Rule 1100(c), the run date for bills Nos. 1644-51 was December 15, 1975, and the run date for bills Nos. 1811-14 was January 29, 1976. The trial date for Nos. 1644-51 was set for December 12, 1975. However, on December 8, 1975, unbeknownst to the prosecution, appellant was surrendered by Philadelphia Police Prison Authorities to the State of New Jersey where he was wanted on a parole violation. The prosecution first learned of appellant's unavailability on December 12, 1975. The prosecution subsequently filed a petition to extend the run date of Nos. 1644-51. On December 15, 1975, the
[ 260 Pa. Super. Page 65]
petition was granted, and the run time for Nos. 1644-51 was extended to January 29, 1976.
The Commonwealth, on December 30, 1975, requested temporary custody of defendant from the New Jersey authorities under the Interstate Compact Concerning Detainers.*fn8 However, in making its request, the Commonwealth did not ask for appellant's return until February 10, 1976, even though it was readily apparent that the run date for all bills would have been January 29, ...