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COMMONWEALTH PENNSYLVANIA v. ROBERT P. MOORE (08/03/79)

filed: August 3, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT P. MOORE, APPELLANT



No. 2471 October Term, 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, at No. 3380 of 1975.

COUNSEL

Roy H. Davis, Assistant Public Defender, Media, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 268 Pa. Super. Page 314]

The instant appeal arises from appellant's sentencing on indecent exposure and aggravated assault in Delaware County. Appellant claims that the delay of two years between his guilty pleas on these charges and his sentencing rendered his sentence illegal. We disagree and will affirm.

The crimes for which appellant was sentenced occurred on May 18, 1975 when appellant followed a young woman after she left a bar. When the victim approached a secluded spot, appellant attacked her, forced her to remove her dungarees, and exposed himself. Appellant then struck the victim over the head with a board having exposed nails, the blow resulting in the victim's hospitalization.

Subsequently arrested for these crimes, on September 24, 1975, appellant pleaded guilty to indecent exposure and aggravated assault. The court thereafter committed appellant to Haverford State Hospital for a presentence, psychiatric evaluation. In the meantime Philadelphia lodged a detainer against appellant because of his probation on two charges of deviate sexual intercourse, so that on his release from Haverford he was delivered into the custody of Philadelphia authorities. The Philadelphia court revoked appellant's probation and sentenced him to three to ten years in prison, whereupon appellant was sent to Camp Hill.

On May 14, 1976, the Delaware County Court of Common Pleas, apparently laboring under the misapprehension that

[ 268 Pa. Super. Page 315]

    appellant was free, mailed notice of his sentencing hearing for indecent exposure and aggravated assault to his home. When appellant did not appear, a bench warrant for his arrest issued. On July 14, 1977, however, Delaware County discovered appellant was serving a sentence in Camp Hill on the Philadelphia charges and lodged a detainer. On September 15, 1977, nearly two years after his guilty pleas, appellant was returned to Delaware County and sentenced to serve a one to two year prison term consecutive to the term he was serving at Camp Hill on the Philadelphia charges. At this sentencing hearing appellant raised the question of sentencing delay for the first time.

At the outset, the six months appellant spent in Haverford State Hospital for presentence, psychiatric evaluation must be excluded, for this delay finds statutory justification. 50 P.S. ยง 4410(a) (1969), in effect at all relevant times in this case, provides:

"Whenever any person is adjudged guilty of a crime punishable by sentence to a penal or correctional institution, the trial court may defer sentence and order an examination of the defendant for mental disability to guide it in determining his disposition. Such action may be taken on the court's initiative, or on the application of the ...


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