No. 2067 Phila., 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Delaware County, at No. TR-4235 of 1977.
Robert F. Pappano, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Wickersham, Montemuro and Watkins, JJ.
[ 312 Pa. Super. Page 119]
Appellant, James Blackwell, takes this appeal from his conviction for robbery. In his appeal, the appellant raises several issues, including: (1) the lower court erred in denying appellant's petition to dismiss under Pa.R.Crim.Pro. 1100, (2) the court erred in not formally arraigning appellant at least ten days prior to trial, (3) appellant was denied effective assistance of counsel for various reasons, and (4) the court erred in refusing to permit appellant to file pre-trial motions. We find the first three of these issues to have no merit, however, we find appellant's fourth issue to be valid and we remand for a hearing on appellant's pre-trial motions.
On July 9, 1977, the Montco Wholesale Food Warehouse in Chester, Pennsylvania was robbed by two men. Based on a description of the two felons and of the car they drove, the police stopped and arrested appellant two hours after the robbery. In due course, appellant was tried before a jury and convicted of robbery and related offenses.
Appellant first argues that the court erred in denying appellant's petition to dismiss the charges under Pa.R.Crim.Pro. 1100. A hearing was held on appellant's petition, and
[ 312 Pa. Super. Page 120]
the evidence introduced at this hearing shows that on July 9, 1977, the appellant was arrested and charged, and a preliminary arraignment was held that same day. On July 21, 1977, a preliminary hearing was held, at which time appellant signed a subpoena informing him that he was to appear for a formal arraignment on August 12, 1977 at a specified time and place, whereupon appellant was released on bail. On the designated date, however, appellant failed to appear for the arraignment. Therefore, in keeping with local procedures, the magistrate declared appellant to be a fugitive and recommended to the common pleas court that it issue a bench warrant. The bench warrant was not issued, however, until October 12, 1977, which was the date on which this matter was scheduled to go to trial. Because appellant had moved without notifying the court, appellant was not located until December 29, 1977, when he was arrested under the bench warrant.
At the Rule 1100 hearing, appellant testified that on the date that he was supposed to appear for his arraignment, that is August 12, 1977, he arrived an hour late and went instead to the Public Defender's Office. Appellant further testified that his public defender assured him that here would be no problem about a bench warrant and that appellant would be notified of a trial date. Appellant said that he never received such notice. Appellant now takes the position that the Commonwealth did not exercise due diligence in locating him and in bringing him to trial. We find this argument to be without merit.
In Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978), the Supreme Court ruled that the Commonwealth does not have to prove due diligence under Rule 1100 where a defendant was out on bail and had notice of a required court appearance but failed to appear as ordered. As the Supreme Court said in Cohen, 481 Pa. at page 354, 392 A.2d at page 1330:
Where a defendant undertakes to accept the status of bail during the pendence of court proceedings he assumes the responsibility of ...