No. 2927 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 580 April Session, 1978.
Leonard Sosnov, Assistant Public Defender, John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Wieand*fn* and Van der Voort, JJ.
[ 276 Pa. Super. Page 156]
Following a non-jury trial on August 9, 1978, appellant was convicted of simple assault*fn1 and aggravated assault.*fn2 Post-trial motions for a new trial and in arrest of judgment were denied, and she was sentenced to a three year term of probation. On appeal, appellant contends that her right to a speedy trial under Pa.R.Crim.P. 1100 was violated and that the trial court committed reversible error in admitting into evidence hearsay testimony. Finding merit to neither of these contentions, we affirm the judgment of sentence.
The pertinent facts are as follows. On October, 18, 1977, Mr. William W. Savin heard scuffling noises and yelling emanating from the residence of his seventy-eight year-old neighbor, Mr. William Thomas, the victim herein. Upon investigating the commotion, Mr. Savin saw appellant emerge from the victim's dwelling. Appellant had blood on her hands, face and clothing. Mr. Thomas then came into view: his head was bleeding profusely, his face was covered with blood and he was moaning loudly. Appellant thereupon ran from the scene, and Mr. Savin gave pursuit, eventually apprehending her at gunpoint some distance from the victim's residence. Mr. Savin subsequently handed appellant over to the police at the scene of the crime and she was
[ 276 Pa. Super. Page 157]
there arrested. During trial, Mr. Savin testified that he and his mother visited the victim in the hospital some thirty minutes after the attack. At that time, Mr. Thomas told Mr. Savin that he was preparing breakfast for appellant when she approached him from behind, put a knife to his neck and demanded money. Mr. Thomas refused appellant's demand, and a struggle ensued in which he was stabbed numerous times in the neck and head. The Commonwealth also presented the testimony of police officer Edward Allen who testified that while on patrol that day, he observed the bleeding Mr. Thomas standing in the doorway of his residence. When Officer Allen approached Mr. Thomas, the victim told him he had "been stabbed" and that "the girl . . . . next door" (appellant) had stabbed him.
A complaint was filed against appellant on October 18, 1977, but at the preliminary hearing on November 21, 1977, the Commonwealth withdrew the complaint because its only eyewitness to the stabbing, to wit, Mr. Thomas, had died in the interim from heart failure, and the Commonwealth did not believe that it would be able to establish a prima facie case against appellant. On March 27, 1978, the Commonwealth, now believing that it circumstantially could make out a case, filed a second complaint against appellant charging her with the same offenses. Pursuant to Pa.R.Crim.P. 1100, appellant filed a motion to dismiss the charges on May 1, 1978, the 195th day following the filing of the first complaint and the 35th day after filing of the second complaint. The petition was denied on August 7, 1978, and the case proceeded to trial on August 9, 1978, the 295th day following filing of the first complaint and the 135th day after filing of the second complaint.
Under the precept of Rule 1100, trial in a criminal case in which a written complaint is filed shall commence no later than 180 days from the date on which it is filed, excluding periods of extension obtained by the Commonwealth pursuant to section (c)*fn3 of the rule and periods of time automatically
[ 276 Pa. Super. Page 158]
excluded under section (d).*fn4 Appellant contends that in the instant case, the run time for Rule 1100 purposes should be construed as beginning on October 18, 1977-the filing date of the first complaint against her. Under this analysis, the August 9 date of trial commencement occurred beyond the mandatory 180 day period. We hold that the run time in the instant case should be calculated from the date on which the ...