No. 1062 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, Philadelphia County, March Term, 1977, Nos. 1939, 1940 and 1948.
Eugene H. Clarke, Jr., Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Hoffman and Catania, JJ.*fn* Hester, J., files a dissenting opinion.
[ 273 Pa. Super. Page 116]
Appellant contends that the lower court erred in denying his motion to dismiss filed pursuant to Pa.R.Crim.P. 1100(f). The lower court determined that the filing of a Commonwealth petition to extend prior to the Rule 1100 run date tolled the running of the Rule 1100 period until the court acted on the petition. We held in the case of appellant's co-defendant that the filing of the petition did not toll the 180-day period. Commonwealth v. Favors, 273 Pa. Super. 109, 416 A.2d 1113 (1979). Accordingly, based upon our decision in Favors, we reverse and remand for an evidentiary hearing to determine whether appellant acquiesced in the Commonwealth's motion for continuance of trial beyond the Rule 1100 run date.
[ 273 Pa. Super. Page 117]
Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.
HESTER, Judge, dissenting:
At 1:30 on the morning of March 12, 1977, appellant, in the company of James Monroe and Percy Favors, by the use of subterfuge, gained admission to the apartment of Eleanor McKeever. The three were armed with guns. She was forced to lie on the floor where she was tied up. Appellant placed a gun to her head and told her, "I'm going to ask you one more time, where is the money and where is the reefer." Ms. McKeever's four year-old daughter and another four year-old girl were sleeping in the adjoining bedroom. Favors opened the bedroom door and stated, "if somebody don't tell where it's at, one of these kids is going to get hurt." Monroe forced Ms. McKeever to reveal the location of her money which was taken by Monroe and Favors. Monroe then forced her to perform oral sex upon him following which he proceeded to rape her. She was also raped by Favors.
The trio were apprehended by the Philadelphia police as they fled from the McKeever apartment building. They were immediately returned to the McKeever apartment where they were identified ten to twenty minutes following the conclusion of the incident. Monroe gave a confession to the police. It was read into evidence during the trial. Appellant was convicted of burglary, criminal conspiracy, and possession of instrument of crime.
Appellant received a fair trial. There can be no serious question as to his guilt. The majority would now reverse the conviction and remand for an evidentiary hearing ...