No. 586 October Term 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Phila. County, Trial Div., Criminal Term, No. 1645 of August Sess. 1975.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ.
[ 277 Pa. Super. Page 20]
Appellant was convicted of statutory rape (18 Pa.C.S.A. § 3122) and corruption of minors (18 Pa.C.S.A. § 3125). On appeal he argues that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated and that he should therefore be discharged.*fn1
[ 277 Pa. Super. Page 21]
A criminal complaint charging appellant with rape, statutory rape, and corruption of minors was filed on August 1, 1975.*fn2 On August 5, 1975, appellant was arrested. On August 13, a preliminary hearing was held, and on August 28, indictments were returned against appellant. A pretrial conference was held on September 19, 1975, and the case was continued until October 16. On October 16, the case was again continued, this time to November 17, because the notes of the preliminary hearing were unavailable. On November 17, the case was listed for trial on December 29, 1975. The record states, and both parties represent, that on December 29, trial was continued until February 9, 1976, because appellant was "not brought down" from prison. On February 5, appellant filed an application pursuant to Pa.R.Crim.P. 1100(f) alleging that his rights under the Rule had been violated and requesting dismissal of the charges. A hearing on the application was held on February 24, at which time it was denied by the lower court. At the February 24 hearing, after the denial of appellant's application, the Commonwealth, over appellant's objection, orally moved the court for an extension of time to commence trial pursuant to Pa.R.Crim.P. 1100(c). The court granted the
[ 277 Pa. Super. Page 22]
oral motion and extended the time for trial until April 10, 1976. Trial commenced on March 22, 1976.
According to the lower court's calculations, Pa.R.Crim.P. 1100(a) permitted the Commonwealth until February 2, 1976, to try appellant.*fn3 The lower court found, however, that the continuances granted on September 19 and October 16 had been granted at appellant's request, and that of the fifty-nine day delay resulting from the continuances, twenty-nine days had to be excluded under Rule 1100(d)(2).*fn4 The court therefore ruled that the mandatory period did not end until March 2, 1976, and dismissed appellant's application.
Appellant argues that the evidence at the February 24 hearing was insufficient to show ...