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decided: April 25, 1979.


No. 705 April Term, 1977, Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of Blair County, Criminal Division at Nos. 700, 701, 703, 704, 705 of 1975.


James V. McGough, Altoona, for appellant.

Thomas G. Peoples, Jr., District Attorney, Hollidaysburg, for Commonwealth, appellee.

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

Author: Price

[ 265 Pa. Super. Page 546]

This appeal arises from imposition of sentence following denial in the court below of appellant's motions for a new trial and in arrest of judgment. Appellant raises seven

[ 265 Pa. Super. Page 547]

    issues on appeal. For the reasons stated herein, we reverse the judgment of sentence and remand the case for a new trial.

The facts essential for resolution of this appeal are the following. On February 23, 1975, appellant, Robert Sweitzer, and a third party were being transferred from the Blair County Courthouse, where they were all incarcerated at the time, to the State Correctional Institution in Huntingdon, a distance of about twenty-five miles. Robert Ferguson and J. Reed Gormont, two deputies both sixty-nine years of age at the time of this incident, were assigned to transport the trio by vehicle. The prisoners were handcuffed to one another by two sets of handcuffs, and they occupied the rear seat of the sheriff's automobile.

Approximately ten miles east of Hollidaysburg, while the car was proceeding on Route 22, an affray ensued in which the prisoners managed to overcome the deputies. The trio seized the deputies' weapons, and a shot was fired at Mr. Gormont as the prisoners made good their escape. Both deputies were hospitalized and remained incapacitated for long periods thereafter.

As the result of a jury trial, in which appellant and his co-defendant Robert Sweitzer were tried together, appellant was convicted of three counts of robbery,*fn1 and one count each of aggravated assault,*fn2 recklessly endangering another person,*fn3 escape,*fn4 assault by a prisoner,*fn5 and theft by unlawful taking or disposition.*fn6

Appellant's first contention is that the trial court erred in failing to discharge him due to a violation of Pa.R.Crim.P. 140(f)(1) and Pa.R.Crim.P. 142, requiring that the issuing

[ 265 Pa. Super. Page 548]

    authority at a preliminary arraignment fix a day and hour for the preliminary hearing which is not less than three nor more than ten days thereafter, to be extended only for cause.

The criminal complaint in this case was lodged against appellant on February 28, 1975, but appellant was not arraigned until March 10, 1975, because he remained at large until that time. Appellant received written notice that his preliminary hearing was scheduled for March 17, 1975, but was told by the issuing magistrate that the hearing might have to be postponed beyond that date due to the condition of the deputies. Not until June 10, 1975, was a preliminary hearing held, and at that time a prima facie case was found against appellant.

The Commonwealth filed a petition for an extension of time in which to bring appellant and John Sweitzer to trial under Pa.R.Crim.P. 1100(c), on August 22, 1975. On September 22, 1975, a hearing on that motion was held, combined with John Sweitzer's motion to quash and his challenge to the array of the grand jury, and appellant's challenge to the array of the grand jury. The Commonwealth was granted extensions, the defendants were denied the relief requested, and on October 1, 1975, the grand jury returned an approved bill of indictment. Appellant subsequently filed motions for venue change, suppression of evidence, bill of particulars, discovery and inspection, and a motion to quash the indictment.

It is appellant's basic contention that the magistrate had no cause to extend the preliminary hearing date. However, our review of the record of the hearing of September 22, 1975, and the lower court's findings of fact thereon persuade us that the magistrate satisfactorily complied with Pa.R.Crim.P. 140 and 142. The court found that on the date of arraignment, written notice was provided appellant that his preliminary hearing would be held on March 17, 1975, but that by virtue of the inability of the ...

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