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COMMONWEALTH PENNSYLVANIA v. EDWARD EUGENE LOHR (02/22/80)

filed: February 22, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD EUGENE LOHR, APPELLANT



No. 1273 April Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Butler County, Criminal Division, No. 700 of 1977.

COUNSEL

Charles F. Haley, Butler, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.

Price, Hester and Montgomery, JJ.

Author: Price

[ 275 Pa. Super. Page 215]

Following a jury trial commenced on June 21, 1978, appellant was convicted of attempted murder*fn1 and statutory rape.*fn2 Post-trial motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a term of imprisonment of from five to ten years on each of the two counts of which he was convicted, and he was ordered to pay the costs of prosecution. On appeal, appellant contends that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated and that he was denied a fair trial due to alleged prejudicial pretrial publicity. Finding no merit to either of these contentions, we affirm the judgment of sentence.

The pertinent facts are as follows. On Halloween night, 1977, the complainant, a thirteen year old female, was hitchhiking on McKnight Road, Ross Township, with another female companion. The duo accepted a ride offered by appellant and three male companions. The complainant was eventually taken to a cottage in Jackson Township and was there raped and coerced into engaging in deviate sexual intercourse. She was then taken into a wooded area by appellant and co-defendant Chester Fulton where she was stabbed a number of times with an ice pick and hit over the head with a hatchet. The young girl was subsequently abandoned; the principals were working under the assumption

[ 275 Pa. Super. Page 216]

    that she was dead. She managed to get herself to aid and was eventually able to testify at trial.

The written complaint on the rape charge was filed on November 1, 1977. Trial was initially scheduled for March 20, 1978, but when the trial court learned that an attempted murder charge was filed against appellant arising out of the same criminal episode, the court continued the case so that both charges could be tried at the same time.*fn3 The complaint charging appellant with attempted murder was not filed until February 24, 1978. As reason for the delay, the Commonwealth explained that until that time, it was operating under the misconception that co-defendant Fulton and co-defendant Robert Harris were responsible for the stabbings. It was only after the preliminary hearing of co-defendant Harris,*fn4 when the complainant identified appellant, not Harris, as her other attacker, that the Commonwealth had sufficient information*fn5 to file an attempted murder complaint against appellant.

On April 21, 1978, the Commonwealth filed a petition entitled "APPLICATION FOR CONTINUANCE*fn6 OF 180

[ 275 Pa. Super. Page 217]

DAYS", in which it asserted that despite its due diligence it would be unable to try appellant on both the rape and the attempted murder charges within 180 days of the filing of the first complaint against him. The reason given for this inability to try appellant timely was the confusion over the identity of the participants in the murder attempt. A hearing was held on April 24, 1978, and per order of the Honorable John C. Dillon, the run time under Rule 1100 was extended to the first week of the criminal trial term which was to ...


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