No. 725 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County at C.P. Misc. 80-002-638
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Wieand and Shertz,*fn* JJ.
[ 294 Pa. Super. Page 496]
Appellant, Morris Lee, was convicted in a non-jury trial of retail theft.*fn1 In this appeal from Judgment of Sentence, Appellant asserts that the lower court erred in failing to grant his motion to discharge, based on the Commonwealth's failure to bring Appellant to trial within the period mandated by Pa.R.Crim.P. 62.*fn2 We have carefully examined the record and, since we find no prejudicial error demonstrated therein, we affirm.
[ 294 Pa. Super. Page 497]
On December 28, 1979, Appellant was arrested without a warrant and arraigned for the theft of an item whose cost was $10.33. The complaint filed by the arresting officer charged Appellant with Retail Theft F-3.*fn3 At the preliminary arraignment, the judge noted there were no prior convictions for retail theft and listed the case for summary trial in the Philadelphia Municipal Court. Thirty-eight days later, on February 4, 1980, Appellant was tried and convicted in Municipal Court of retail theft as a summary offense. An appeal was taken to Common Pleas Court and argument was heard on the motion to dismiss based on the violation of Rule 62. The motion was denied and the court convicted Appellant of retail theft.*fn4
Assuming arguendo that Rule 62 applies,*fn5 our examination of the record indicates that the asserted error did not prejudice Appellant. Appellant does not contend that he
[ 294 Pa. Super. Page 498]
was prejudiced by the thirty-eight day lapse between the preliminary arraignment and his trial. Rather, despite the absence of any assertion or showing of prejudice, Appellant argues that the violation of Rule 62, per se, warrants dismissal of the charges against him.*fn6 We disagree and conclude, instead, that the delay, although it is to be condemned, was harmless inasmuch as no prejudice to Appellant was shown to have resulted from the failure of the Commonwealth to comply with the requirements of Rule 62. See, e.g., Commonwealth v. Andrews, 285 Pa. Super.Ct. 100, 103, 426 A.2d 1160, 1162 (1980); Commonwealth v. Paskings, 447 Pa. 350, 354, 290 A.2d 82, 84 (1972).
Decision was rendered prior to SHERTZ, J. leaving the bench of the Superior ...