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decided: November 14, 1978.


No. 277 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, before the Honorable Robert F. Kelly, as of No. 7004 of 1976(I) December Term, 1976.


Roy H. Davis, Assistant Public Defender, Drexel Hill, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 260 Pa. Super. Page 282]

This appeal arises out of an incident that occurred on November 1, 1976, at approximately 10:00 P. M. Appellant, with two companions, entered the Crooked Penny Bar in Darby Township, Delaware County, Pennsylvania. Shortly following this, a patron, Raymond Ferraccio, became engaged in an argument with a companion of the appellant, John Stanley. The appellant, during the course of this argument, left the bar, returned a few minutes later, pulled the telephone receiver from the wall, walked toward Mr. Ferraccio, pointed a pistol at his head and said, "You're a dead M___ F___." The appellant then fired the pistol, the bullet struck Mr. Ferraccio in the head and he fell to the floor. An off-duty policeman in the bar heard the shot and approached appellant, who then pointed the gun at the officer's chest. Someone yelled, "Don't shoot, he's a cop," whereupon appellant and his companions ran from the bar.

On the same night (November 1, 1976), a complaint was filed before a District Magistrate in Delaware County, charging appellant with various crimes (including attempted murder) arising out of the above described incident.

The appellant was arrested on December 31, 1976 pursuant to a warrant issued on November 6, 1976 on an unrelated charge of robbery. On January 4, 1977, a Preliminary Arraignment was held on the robbery charge. The appellant was detained in the Delaware County Prison following his failure to post bond.

On February 18, 1977, the appellant moved to quash the information brought against him pursuant to the complaint filed November 1, 1976 on the ground that he had not been accorded a preliminary arraignment or hearing.

A preliminary arraignment and hearing were held on February 28, 1977, and appellant was held for court.

[ 260 Pa. Super. Page 283]

Appellant initially argues that the failure to provide him a preliminary arraignment and hearing within the time provided by the Rules of Criminal Procedure requires that he be discharged.

Rule 122 of the Pennsylvania Rules of Criminal Procedure provides: "when the defendant has been arrested, with a warrant, within the county where the warrant of arrest was issued, where the complaint charges a court case, he shall be taken without unnecessary delay before the issuing authority whose name appears upon the warrant for preliminary arraignment."

Further, Rule 140(f) provides that the preliminary hearing shall be held no less than three nor more than ten days after the preliminary arraignment.

Appellant was arrested on December 31, 1976 on an unrelated charge and arraigned on that charge on January 4, 1977. No arraignment or preliminary hearing was held on the charges in this case until February 28, 1977.

While we disapprove of the obviously careless procedure in this case, we do not think it merits discharge.

Here, the appellant was already in jail and suffered no prejudice by the delay. The purpose of Rules 122 and 140 are to protect the right of an accused against unlawful detention. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). We find no other prejudice to the appellant and despite the technical violation of the rules, we do not believe appellant's discharge is mandated. See Commonwealth v. DeCosey, 246 Pa. Super. 412, 371 A.2d 905 (1977).

Appellant's second contention is that the evidence presented at trial was insufficient to support a conviction of criminal attempt (murder).

Viewing the evidence in light most favorable to the Commonwealth, the verdict winner, Commonwealth v. Smith, 238 Pa. Super. 422, 357 A.2d 583 (1976), we find the evidence sufficient to support the conviction of criminal attempt (murder). The testimony leaves no doubt that the Commonwealth sufficiently satisfied its burden.

The victim, Raymond Ferraccio testified as follows:

[ 260 Pa. Super. Page 284]

Q. So you saw him (appellant) coming back in the bar and you say he was, he ripped the receiver off the phone. Would you describe that?

A. Yeah, he took the receiver off the pay phone at the door and tore the wire off.

Q. Did that appear to put it out of commission?

A. Yeah.

Q. Then what did he do?

A. Pointed a gun at me.

Q. Now, what type of gun did it ...

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