No. 3067 October Term, 1978, Appeal from Judgment of Sentence imposed by the Court of Common Pleas of Delaware County, Criminal Division, at No. 7901 of 1975.
Roy Davis, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Cercone, President Judge, and Wieand and Louik, JJ.*fn* Cercone, President Judge, files a dissenting statement.
[ 277 Pa. Super. Page 304]
In this appeal following convictions for rape, theft by unlawful taking, simple assault and criminal conspiracy, appellant contends that he was not timely tried under Pa.R.Crim.P. 1100. Because we are unable to determine the merits of this claim from the existing record, we will remand for an evidentiary hearing.
On November 7, 1975, the appellant, John X. Layne, also known as Brother Jeremiah, opened the door of a vehicle stopped at a traffic light in Chester and shouted, "This is a
[ 277 Pa. Super. Page 305]
stick-up." When the lone female occupant attempted to escape, another man entered the car through the passenger's door. As appellant operated the vehicle, his companion took the occupant's pocketbook and wallet. Later, the companion slapped the occupant, forced her to disrobe, and raped her while appellant remained outside the car. Appellant also had forced intercourse with the occupant, after which she was pushed from the car as the men drove away. Unable to find clothing, she hid behind a construction barrel until taken to the hospital by a passing motorist.
A complaint was filed on November 12, 1975. The original run date, therefore, was May 10, 1976. Although the case was listed for trial on March 15, 1976, appellant failed to appear for arraignment on February 6, 1976, and a bench warrant was issued. He also failed to appear for trial, which was then continued and rescheduled for May 24, 1976. Appellant was a fugitive until March 20, 1976, when he was arrested and incarcerated on a bench warrant issued in another case.
On May 14, 1976, the Commonwealth filed a petition to extend the time for trial. The record does not disclose whether a hearing was held. On May 24, 1976, while neither appellant nor his counsel was present, the court granted an extension until November 10, 1976. Whether adequate notice of the extension petition was given is the subject of an unresolved dispute.
On May 25, 1976, trial was continued until July 14, 1976 on motion of the defendant. On July 14, 1976, another defense motion for continuance was granted, and on August 2, 1976, a defense motion for continuance of trial was granted until September 20, 1976. In the meantime, appellant's counsel filed a motion to dismiss under Rule 1100. This motion was heard on August 17, 1976.*fn1 Appellant's primary contention was that the extension order of May 24, 1976 was ...