No. 829 October Term, 1978, Appeal from Order of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal No. 740 of 1970 reinstating judgment of sentence.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Richard A. Sheetz, Jr., Assistant District Attorney, with him Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.
Van der Voort, Montgomery and Watkins, JJ.
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This case comes to us on appeal from the Court of Common Pleas of Lancaster County, Criminal Division, and involves defendant-appellant's appeal from a conviction by a jury of public indecency.
On March 30, 1970, the appellant was observed masturbating while seated in a motor vehicle. Detective Paul Rose and one John Gabriel observed the defendant masturbating in his convertible automobile which was double parked in Penn Square, Lancaster, Pennsylvania, at about 3:30 P.M. He was convicted of public indecency by a jury on March 19, 1975. Defendant now claims that the evidence adduced at trial was not sufficient to convict him because his acts were not open nor notorious. This issue has been previously resolved by this Court in Commonwealth v. Gonzales, 249 Pa. Super. 359, 378 A.2d 335 (1977) wherein we held that the act of masturbating in an automobile, on a busy street in a city during daylight hours was an open and notorious act and that therefore sufficient evidence was
[ 261 Pa. Super. Page 341]
adduced at trial for a jury to convict the defendant of public indecency. Act of June 24, 1939, P.L. 872, 3519; 18 P.S. 4519. However, we also remanded this case to the court below to conduct an evidentiary hearing on whether the defendant's right to a speedy trial had been violated. Commonwealth v. Gonzales, supra.
Although arrested in March of 1970 the defendant was not brought to trial until March 19, 1975. Since his arrest occurred prior to the effective date of Pa.Rules of Crim.Pro. 1100 that rule is inapplicable to the defendant. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Therefore, the facts of this case relative to the five year delay in bringing the defendant to trial must be examined in light of the law in existence prior to Pa.Rules of Crim.Pro. 1100. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the U. S. Supreme Court devised a four prong test in order to determine whether a defendant's Sixth Amendment rights to a speedy trial had been violated. The four factors to be considered are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant.
The record reveals that defendant was arrested in March of 1970. His preliminary hearing was held in April of 1970 after which he was bound over for the Grand Jury. After a true bill was returned against him by the Grand Jury he was scheduled for trial on June 22, 1970. For reasons not appearing on the record the trial was continued until September of 1970. On September 24, 1970, a public defender, appointed by the court to represent the defendant because defendant's private counsel had been granted permission to withdraw from the case, requested a continuance of the case which was granted. During this time the defendant was confined in the Lancaster County Prison on a parole violation charge due to an unrelated incident. Defendant was released from prison on the parole violation charge in November of 1970 and bail in the amount of $500.00 was set and posted on the public indecency charge. During the bail
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proceeding the defendant signed the bail piece which advised the defendant that January 11, 1971 had been set as his trial date. Judge Hensel Brown, who had conducted the bail proceeding, testified at the hearing on the speedy trial allegations that although he could not remember this specific situation that it was his usual practice to emphasize the trial date to a defendant at the bail ...