No. 1527 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County at No. 2712-78 Criminal.
Albert C. Oehrle, Norristown, for appellant.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Hester, Cavanaugh and Van der Voort, JJ. Cavanaugh, J., concurs in the result.
[ 292 Pa. Super. Page 82]
Appellant was convicted in a non-jury trial of involuntary deviate sexual intercourse, two counts of burglary, and loitering and prowling at night time. Post verdict motions were denied and appellant was sentenced. A timely appeal was filed with this court. Prior to argument, appellant petitioned this court to remand for an evidentiary hearing concerning his contention involving Rule 1100, Pa.R.Crim.P. This court granted such petition. The lower court held an evidentiary hearing and filed a supplemental opinion. The case then proceeded along the normal appellate path.
Since appellant's complaints are basically procedural in nature, an abbreviated factual account of the case is all that is needed. Two female residents of the Kingswood Apartments
[ 292 Pa. Super. Page 83]
in King of Prussia, Upper Merion Township, Montgomery County were burglarized on consecutive Tuesdays. The intruder either attempted to or actually succeeded in sexually abusing the two residents. Both incidents occurred in the early morning hours, one at approximately 3:30 a. m., the other at approximately 4:00 a. m. The police established a surveillance of the apartment complex. On the following Tuesday, appellant was observed at approximately 3:40 a. m. walking along a line of trees in the rear of one of the apartment buildings. As appellant approached a location where a police officer was located, the officer revealed and identified himself and then began to question the appellant. The appellant admitted that he did not live in the apartments. He claimed he was looking for a place to relieve himself and that he became lost and was unable to locate his car. Mr. Nash was placed under arrest for loitering and prowling. He was advised of his rights, and transported to the police station.
Appellant signed, with counsel present, two written postponement requests, both requests were accompanied by a "Rule 1100 Waiver"; both were granted. The three cases came up for trial on March 13, 1979. Argument on pretrial motions were held after which, the court denied appellant's application to dismiss under Rule 1100 and denied his motion to suppress his statement. Appellant was tried before the same judge sitting without a jury and found guilty.
Appellant raises four issues on this appeal which we will discuss seriatim.
1. Did probable cause exist to arrest appellant?
Appellant recites that there are four elements to the crime of loitering and prowling, the conduct: must occur at night; around a dwelling house; consisting of either loitering or prowling; with, evidence of malice. Appellant claims that he was not "around a dwelling ...