Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



December 29, 1981


No. 225 Harrisburg, 1980, Appeal from the Judgment of Sentence dated October 16, 1980 Court of Common Pleas, Criminal Division, of Dauphin County, No. 811 CD of 1979.

Before Brosky, Beck and McEWEN, JJ.

Per Curiam:

Judgment of sentence is affirmed.







The defendants were convicted by a jury on June 24, 1980, of the crime of theft by unlawful taking and conspiracy and their post-trial motions are now before us.

Defendants initially question the sufficiency of the Commonwealth's evidence by which they were convicted, which consisted of the testimony of George Bricker, a self-confessed participant in the theft. Bricker and Gill were employees of Kratzer's Amoco Station. When it appeared the station was about to close, Bricker testified that they decided to stage a robbery and keep and divide the receipts on hand. Apparently Fornwalt became a participant in the scheme at the invitation of Gill, for she appeared at the station in Gill's company on March 29, 1979, and the three people thereupon planned the theft.

It was made to appear that Bricker was locked in a closet by a holdup man and a door panel was broken out to simulate his escape. Pursuant to their plans, on March 30, 1979, Bricker called the police from the gas station and indicated he had just been robbed and in this manner approximately $2700.00 in cash was taken from the owner of the station. During the investigation of the alleged robbery Bricker confessed and implicated the defendants. At trial Gill and Fornwalt vehemently denied being involved in the scheme and alibi witnesses were presented on their behalf. The jury convicted defendants and it is obvious the Commonwealth's evidence was sufficient. The cases depended entirely on credibility and Bricker's testimony alone, if believed, was sufficient basis for the conviction. See COMMONWEALTH v. GORDON, 254 Pa. Superior Ct. 267, 385 A.2d 1013 (1978).

The only real issue in the case is whether the defendants were brought to trial promptly and they have raised objections under Pa R.C.P. 1100, which they argue require dismissal of the within cases.

The complaint against Gill was filed on April 23, 1979, and against Fornwalt on May 21, 1979. A joint trial was set in both cases for October 15, 1979, but prior to that time both defense counsel were engaged in a protracted trial in federal court, and it was known that lengthy continuances and extensions would be required until the completion of the federal case, known as the Pocono Downs case.

On October 15, 1979, defendant Fornwalt appeared in open court and requested a continuance and on the record waived the benefit of Rule 1100 from October 15, 1979, until January 1, 1980. She was notified in November 1979 that her case would be heard beginning January 16, 1980. On January 11, 1980, she requested a further continuance due to the unavailability of her counsel, who was still engaged in the aforesaid federal trial. On that date she filed a written waiver of Rule 1100, under oath, in which she "... as of this date waives any right to be brought to trial as provided in Rule 1100 of the Pennsylvania Rules of Criminal Procedure." On February 12, 1980, she executed a second written waiver of Rule 1100 using the identical language.

We think it abundantly clear that Fornwalt has no standing to raise a Rule 1100 issue. Not only did she waive Rule 1100 from October 15, 1979, until January 1, 1980, but on January 11 and February 12, 1980, she executed and filed unrestricted waivers of Rule 1100, which preclude her from pursuing an argument under said rule.

The cases against Gill are slightly different. Her case was likewise listed for trial October 15, 1979. On that date she also was granted a continuance and waived Rule 1100 until January 1, 1980. The case was rescheduled for January 16, 1980, and the case was continued at defendant's request. On January 11, 1980, she signed and filed a written waiver of Rule 1100 but "only from the time of today's date until my attorney shall become available for trial." The case was continued and on February 12, 1980, Gill signed and filed another written waiver of Rule 1100 in which she again waived Rule 1100 "but only insofar as that pertains to the period of time between this date [2-12-80] and that day which shall be the thirtieth day after my defense counsel... completes his responsibility with respect to the trial of the Pocono Downs Case.... By this last filing defendant agreed to waive Rule 1100 from February 12, 1980, until thirty (30) days after the conclusion of the Pocono Downs case.

Defense counsel for Gill failed to notify the District Attorney of his availability or of the conclusion of the federal trial on or about April 3, 1980. This information was brought to the attention of the prosecution, however, on April 14, 1980, when Fornwalt's counsel advised of his availability. Armed with this information, on April 28, 1980, the Commonwealth applied for an extension of time to try the Gill case, in order to comply with the thirty day limitation imposed in her waiver of February 12, 1980. On May 8, 1980, defendant answered the petition for extension by filing a motion to dismiss under Rule 1100. A hearing on the Commonwealth's petition for extension was held on June 23, 1980, and the case proceeded to trial on that date.

We think it clear that there is no violation of Rule 1100 with regard to Gill. When the waiver of the rule occurred on October 15, 1979, 164 days had elapsed from the filing of the complaint on April 23, 1979. Another nine days elasped from January 2, 1980, until the second waiver was filed on January 11, 1980. As of this date (when 173 days had elapsed) we find the running of the 180 day period was tolled, with a cut-off date being established by the waiver of February 12, 1980. The final period for trial of thirty (30) days after defense counsel's availability would not begin to run until April 14, 1980 (when the Commonwealth learned of counsel's availability from another source).*fn1 Thus, under the terms of the various waivers the Commonwealth had until May 14, 1980, to bring defendant to trial. Within that time, on April 28, 1980, the Commonwealth properly filed its request for a further extension which was fully warranted by all of the circumstances.

We believe the foregoing discussion makes clear that during a period of over six months the Commonwealth was doing its utmost to try the case expeditiously, and doing everything it could reasonably be expected to do to protect itself from becoming ensnarled in the jaws of Rule 1100. The delay that occurred in these cases was due to one reason and one reason alone, and that was the unavailability of defense counsel due to their involvement in a lengthy federal trial which extended into April 1980. Trial was scheduled promptly thereafter, and a jury trial was concluded in approximately two months. To discharge these defendants under Rule 1100 would not recognize the realities of the situation and although Rule 1100 may be needed to challenge the prosecution in certain counties, its application in this case would not be in keeping with the spirit of the rule.

Finally, we have reviewed defendants' contention that the case should be dismissed because the Commonwealth did not provide the defense with a bill of particulars timely. Because the information wought in the bill was readily available to the defense from oter sources, dismissal of these cases is not warranted by any delay that occurred.

William W. Caldwell, J.


AND NOW, September 17, 1980, the post trial motions of the defendants are overruled and they are directed to appear for sentencing at the call of the District Attorney.

William W. Caldwell, J.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.