No. 2208 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Philadelphia County, entered July 15, 1976, at No. 640 Nov. 1975.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 232]
This appeal is from the Order of the Court of Common Pleas of Philadelphia County, sentencing appellant Robert Bethel to two and one-half to five years in prison. Appellant alleges error in that court's refusal to dismiss the indictments where the Commonwealth failed to either commence the trial de novo within the time limit specified in Pa.R.Crim.P. 6013, or to petition timely for an extension of the requisite period. He argues additionally that his purported waiver of his constitutional right to counsel was invalid as a matter of law; that a new suppression hearing ought to be granted; and that the court below wrongfully
[ 261 Pa. Super. Page 233]
imposed a more severe sentence following trial de novo than that imposed by the Philadelphia Municipal Court. Because we are constrained to agree that the lower court failed to comply with Rule 6013, we vacate the judgment of sentence and discharge appellant.
On April 26, 1975, Officer Hugh Maguire received information via police teletype that appellant was being sought on charges of robbery, burglary, theft and weapons offenses. He then obtained a police photo of the suspect, and spoke to a detective who had obtained the warrant for his arrest.
Officer Maguire testified further that at approximately 5:10 P.M. on May 3, 1975 he observed appellant riding a bicycle at the intersection of 52nd Street and Springfield Avenue in Philadelphia. Recognizing him from the photo, he stopped and frisked him and found on his person a .22 caliber automatic pistol, loaded with nine rounds and one in the chamber. Appellant was then placed under arrest.
The officer testified further that at the time of arrest appellant did not produce a license to carry the gun. The Commonwealth then presented a certification from Harrisburg that a license had not been issued to appellant to carry a gun in Philadelphia, as well as a ballistics report concerning the operability of the weapon.
On April 23, 1976, appellant was found guilty before the Honorable Alfred J. DiBONA, Jr. of the Philadelphia Court of Common Pleas, sitting without a jury, on charges of unlawfully carrying a firearm without a license and carrying a firearm on public streets of Philadelphia. He had been convicted previously in the Philadelphia Municipal Court, and on October 17, 1975, filed an appeal from that conviction. Pa.R.Crim.P. 6013(g) provides that:
[a] trial de novo in the Court of Common Pleas shall commence within a period of ninety (90) days after the notice of appeal from the Municipal Court is filed. In all other respects the provisions of Rule 1100 ...