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COMMONWEALTH PENNSYLVANIA v. RICHARD MILLER (07/06/79)

decided: July 6, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD MILLER, APPELLANT



No. 741 October Term, 1978, Appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, Criminal Sec., Philadelphia County, Indictment Nos. 986-987 and 989-990, December Term, 1972.

COUNSEL

Michael A. Seidman, Philadelphia, for appellant.

Neil Kitrosser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Van der Voort, Hester and Wieand, JJ.

Author: Hester

[ 268 Pa. Super. Page 127]

Appellant Richard Miller was convicted by a jury in the Court of Common Pleas of Philadelphia County of charges of forcible rape, burglary, aggravated robbery, assault and battery, and aggravated assault and battery.*fn1 Following denial of post-trial motions, he was sentenced to an aggregate term of twenty to forty years imprisonment. On this direct appeal, appellant assigns as error various rulings and actions in the court below. We find his contentions to be without merit and will therefore affirm.

[ 268 Pa. Super. Page 128]

Facts adduced at trial established the following: In the early morning hours of November 1, 1972, the complainant was asleep in bed on the second floor of her three story dwelling in South Philadelphia. She awoke suddenly to find two young black males standing by her bed, one on each side. The intruder on her right began beating her upon her head with a hammer while the individual on her left, later identified to be the appellant, climbed on top of her and raped her. Appellant then cut the victim's face with a knife and demanded money, while the other individual proceeded to rape her. The young woman produced her pocketbook from which the perpetrators stole between $35.00 and $40.00. Following this, appellant and his confederate fled through the back door while the victim called the police. Appellant was arrested, charged, and confessed to these crimes approximately three weeks later on November 20, 1972. His nephew, Clarence Miller, was identified as the other rapist.

Appellant was originally tried and convicted of these crimes on September 25, 1973, by a jury. On appeal, this Court remanded, allowing appellant to file post-verdict motions nunc pro tunc. Commonwealth v. Miller, 232 Pa. Super. 171, 335 A.2d 528 (1975). Following this, the trial court granted him a new trial on February 19, 1976, finding appellant had not executed a valid waiver of counsel in the first trial. The Commonwealth appealed the granting of a new trial and we affirmed per curiam. Commonwealth v. Miller, 244 Pa. Super. 578, 371 A.2d 860 (1976). It is from the judgment of sentence imposed after the retrial that the present appeal is taken.

Appellant first contends his retrial did not begin within the time required under Pa.R.Crim.P. 1100 and that he must be discharged. Following Judge Cain's granting of a new trial on February 19, 1976, and while the Commonwealth's appeal therefrom was pending in this Court, the Commonwealth filed a Rule 1100(c) petition in the trial court seeking an extension of time for the commencement of the retrial. This petition was granted April 6, 1976, the court extending the rundate under Rule 1100 to thirty days following this

[ 268 Pa. Super. Page 129]

Court's decision, should this Court affirm the February 19, 1976 order. Our decision so affirming was handed down December 20, 1976. On the thirty-first day following, trial not having commenced, appellant filed a Rule 1100(f) application seeking dismissal of all charges with prejudice. The court denied this request, noting Rule 1100(e) had since been amended to allow retrial within 120 days of an appellate court affirmance of an order of a trial court granting a new trial. Under the amended rule, the Commonwealth still had some 89 days within which to try appellant, thus rendering the Rule 1100(f) request premature. We think this construction of the amendment by the lower court was correct.

When the lower court granted the Commonwealth's Rule 1100(e) extension petition to 30 days following disposition of the Commonwealth's appeal, there was no provision in Rule 1100 for a prompt trial deadline after an appellate affirmance of a trial court order ...


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