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COMMONWEALTH PENNSYLVANIA v. JOHN J. BROGAN (09/28/79)

filed: September 28, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN J. BROGAN, APPELLANT



No. 2750 October Term, 1978 Appeal from Order of the Court of Common Pleas of Bucks County Criminal Action, No. 152 (Misc.) 1978

COUNSEL

Marc I. Rickles, Langhorne, for appellant.

John J. Kevlock, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Price, Gates*fn* and Dowling,*fn* JJ.

Author: Dowling

[ 270 Pa. Super. Page 199]

This is an appeal from a conviction for harassment.*fn1 The testimony adduced at trial disclosed that on September 11, 1977 as the appellant was operating a sailboat on the Delaware River near the Burlington-Bristol Bridge, he threw a bottle of beer in the direction of the complainant's motorized boat which was travelling in the opposite direction. The bottle struck the gunwale, and splintered over the deck narrowly missing two of the four persons aboard. On December 9, 1977, a private criminal complaint was filed. A preliminary hearing was held on January 9, 1978, at which time the appellant was found guilty. Pursuant to appellant's motion, a non-jury trial de novo was conducted in the Bucks County Court of Common Pleas on September 15, 1978 and appellant was again found guilty. Following denial of post-conviction motions, appellant comes before this court to request relief.

Initially, appellant argues that the isolated incident of tossing a bottle falls short of constituting a "course of conduct . . . serv(ing) no legitimate purpose" as required under Subsection 3 of the Harassment Statute.*fn2 Appellant stated in his brief that this claim was raised and argued during his trial de novo. However, neither the

[ 270 Pa. Super. Page 200]

    official record certified to this court nor the lower court's opinion contains any reference to this argument. Because we are required to accept the transcribed record as correct, we cannot lend any credence to appellant's unsubstantiated statement that this point had indeed been brought to the trial court's attention. Commonwealth v. O'Brien, 181 Pa. Super. 382, 124 A.2d 666 (1956). It is fundamental that assignments of error not raised in the court below may not be raised for the first time on appeal. Commonwealth v. Jefferson, 234 Pa. Super. 337, 338 A.2d 657 (1975). Consequently, we are unable to reach the merits of appellant's argument.

It is next argued that the lower court committed error in failing to dismiss the charges lodged against appellant because trial was not held within the time limits imposed by Pa.R.Crim.P. 57(b)(1)(i). This rule provides that trial for summary offenses such as harassment shall be conducted no less than three nor more than ten days after the accused's initial appearance before the issuing authority. In the instant case, appellant's trial wasn't held until twenty-five days after such appearance. It is obvious that Pa.R.Crim.P. 57(b)(1)(i) has not been complied with; it is less obvious that this necessitates disturbing the order entered below. Unlike Pa.R.Crim.P. 1100, Rule 57(b)(1)(i) does not expressly provide for dismissal or any other remedy upon violation of its requirements. Rather, Rule 57(b)(1)(i) is more akin to Pa.R.Crim.P. 140(f)(1), which provides for an identical time framework within which to schedule a preliminary hearing. In Commonwealth v. DeCosey, 246 Pa. Super. 412, 371 A.2d 905 (1977), this court held that discharge is not properly forthcoming for a Rule 140(f)(1) violation when the accused was not incarcerated during the period of delay, failed to object to the hearing's untimeliness before it was conducted, and failed to demonstrate prejudice flowing from the delay. Reasoning by analogy, we are satisfied that the delay in conducting appellant's trial, in violation of Pa.R.Crim.P. 57(b)(1)(i) was not so inherently egregious as to

[ 270 Pa. Super. Page 201]

    mandate dismissal absent a showing of prejudice accruing to the appellant. Since no such showing has been made, we do not believe appellant's discharge is appropriate. See, Commonwealth v. Riley, 260 Pa. Super. 280, 393 A.2d 1263 (1978).

Appellant next contests the jurisdiction of the court below. The evidence adduced at trial revealed that the offense complained of took place on the waters of the Delaware River in the vicinity of the Burlington-Bristol Bridge. We take judicial notice of the fact that the geographical area described lies between Pennsylvania and New Jersey. Under the Interstate Compact of 1783, Sept. 20, 2 Sm.L. 77, § 1, 71 P.S. § 1805, Pennsylvania and New Jersey share concurrent jurisdiction over offenses committed on the Delaware River and between their respective shores. Exclusive jurisdiction rests in the ...


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