No. 2218 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal Division, at No. 70 of 1976
George B. Angell, Port Allegheny for appellant.
Marion E. Mac Intyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Wickersham, Brosky and Wieand, JJ. Wieand, J., concurs in result.
[ 303 Pa. Super. Page 231]
Appellant was convicted of aggravated assault and battery on October 7, 1976. Post-trial motions were filed in October, 1976, but were withdrawn in April, 1977. On April 20, 1977, appellant was sentenced to a term of imprisonment of 18 to 36 months. On April 27, present counsel entered his appearance on appellant's behalf. A motion to vacate sentence was filed and former counsel withdrew his appearance in May, 1977. On May 25, 1977, the motion to vacate sentence was granted and post-trial motions were reinstated. Appellant was released on bail.
The parties agree that argument was held on the post-trial motions in July, 1977. However, the court apparently did not take any action on the motions following argument. In February, 1978 appellant's counsel wrote to the judge who had heard the argument on the motions and inquired as to
[ 303 Pa. Super. Page 232]
their status. Appellant claims that reargument was held on the motions in the spring or summer of 1978; appellee seems uncertain as to whether such an argument was held.
In any case, no action was taken by the court on the motions until July of 1980 at which time another judge was assigned to dispose of the matter. Appellant states that his counsel made inquiry as to the motions in the period 1978-1980, but the record discloses no written evidence of such an inquiry. No motion to dismiss was filed until August 27, 1980. That motion was denied in February, 1981 and oral argument was again held on the post-verdict motions on March 25, 1981. The motions were denied on April 28, 1981. Appellant was sentenced on June 24, 1981 and this appeal followed.
The primary issue before us is whether the charges against appellant should be dismissed because of the lower court's delay in disposing of his post-trial motions and in sentencing him. Appellant claims that dismissal is justified on the grounds that his constitutional rights to due process and speedy trial were violated and because the lower court failed to comply with Pa.Rule of Criminal Procedure 1122. Appellant also argues that the verdict as to aggravated assault was not supported by sufficient evidence. We affirm the judgment.
In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), our Supreme Court noted that the question of whether the Sixth Amendment speedy trial right extends to sentencing has not been settled. The court did, however, assume arguendo that such a right exists. See also: Pollard v. U.S., 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). We will follow the approach taken in Pounds and turn now ...