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submitted: April 27, 1983.


No. 1055 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC 7902331A.


John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Rowley, Popovich and Hoffman, JJ. Rowley, J., files a concurring statement.

Author: Popovich

[ 318 Pa. Super. Page 348]

This is an appeal from the judgment of sentence for Rape (18 Pa.C.S.A. § 3121(1)) and Criminal Conspiracy (18 Pa.C.S.A. § 903(a)(1)) entered by the Court of Common Pleas of Allegheny County.

On appeal, appellant, Donald Scott Alexander, asserts that: 1) the Commonwealth failed to exercise "due diligence" in bringing him to trial within the 180-day period mandated by Pa.R.Crim.P. 1100; and 2) the evidence was insufficient to support his conviction for Criminal Conspiracy. We are constrained to agree with the first point proffered by the appellant; accordingly, we reverse the judgment of sentence.

Because of the result we reach in the case at bar, we need only concern ourselves with the Rule 1100 issue. The facts in regard thereto consist of the following: A complaint was filed against the appellant on March 21, 1979. Shortly thereafter, the officers in charge of locating the accused spoke to him by phone and were assured that he intended to turn himself in, but he did not do so. As a result, on April 17, 1979, the police went before a magistrate to establish that appellant could not be found despite their diligent search. Also, appellant's vital facts were placed with the National Crime Information Center (N.C.I.C.) by Allegheny County authorities. This was succeeded by the court granting the Commonwealth's Pa.R.Crim.P. 231 petition on June

[ 318 Pa. Super. Page 34918]

, 1979, i.e., the filing of an Information without the requirement of a preliminary hearing.

Sergeant Warren Broz, of the Pittsburgh police, testified that on January 16, 1980 he received a call that appellant was incarcerated in New Jersey.*fn1 This information, in turn, was relayed to the assistant district attorney (Michael F. Dalfonso, Jr.) in charge of all matters involving extradition, detainers and writs of habeas corpus for the District Attorney's Office of Allegheny County on or about January 21, 1980. (N.T. 1/14/81 at 12) This caused the assistant district attorney to phone New Jersey authorities, who told him that appellant had charges pending against him in that State. Thereafter, on January 23, 1980, the assistant district attorney secured and sent a bench warrant for appellant's arrest.

On March 20, 1980, the assistant district attorney received a letter from the Deputy Attorney General of New Jersey telling him appellant "had been sentenced." (N.T. 1/14/81 at 29) A certified copy of appellant's conviction was enclosed and revealed that he had been sentenced on February 27, 1980. This prompted Assistant District Attorney Dalfonso, on March 27, 1980, to write to the State Correctional Institution in Yardville, New Jersey requesting temporary custody of the appellant pursuant to the Agreement on Detainers Act.*fn2 (Detainers Act) Enclosed in the mail was "form five," which was a "[r]equest for temporary custody [of the appellant] for purposes of trial on charges of rape." (N.T. 1/14/81 at 14) The correctional institution and appellant each received a "form five." (N.T. 1/14/81 at 15) Normally, as testified to by the assistant district attorney and not contested by the defense, "there is a 30-day

[ 318 Pa. Super. Page 350]

    waiting period from the time the defendant is served a copy of form five[,]" (N.T. 1/14/81 at 14-15), to afford the accused the opportunity to object to the receiving state's (in this case Pennsylvania's) petition for custody with the sending state's (in this case New Jersey's) Governor.*fn3 See 42 Pa.C.S.A. § 9101 (Art. IV(a)). The assistant district attorney went on to state that it was customary to tack on 10 days to the original 30-day period, given the facts at bar, to allow for the time consumed in the pick up and delivery of the mail. (N.T. 1/14/81 at 28-29) The reason for adhering to such a time stricture ("rule of thumb" time table), according to the witness, is to avoid unnecessary communication with the sending state's officials prior to the expiration of the statutorily created appeal period. Thus, if everything had gone properly, the assistant district attorney opined that the next date he should have heard from New Jersey "would [have been] . . . sometime early [in] May" of 1980. (N.T. 1/14/81 at 15)

However, the assistant district attorney did not act until July 10, 1980, at which time he phoned Yardville State Correctional Institution concerning the accused and was advised that he "had been transferred to Rahway State Correctional Institution in New Jersey . . . ." (N.T. 1/14/81 at 17, 35 and 36) This caused the assistant district attorney to send a letter to a Ms. Fruscello on July 10, 1980, who was in charge of "classification" at Rahway State Prison, requesting temporary custody of the appellant by means of "a new form five." (N.T. 1/14/81 at 18) The next contact the assistant district attorney had with Rahway was when he called Ms. Fruscello on September 16, 1980. The assistant district attorney was informed that the original "form five" sent to Yardville "had been misplaced in the transfer" of the appellant to Rahway. (N.T. 1/14/81 at 35-36) As for

[ 318 Pa. Super. Page 351]

    the reason why the officials at Rahway did not act on the "new form five," Ms. Fruscello advised the assistant district attorney that "she was on vacation for the [previous] three weeks and no one did her work. She assured [him] she would get on this matter immediately. [However, t]he next communication [the assistant district attorney] received was a telephone call from Detective Scott from [a New Jersey] County Prosecutor's Office on October 23, 1980. He advised [the assistant district attorney] that the defendant was on the street. He knew where he was. He wanted to know if [the assistant district attorney] still wanted him." (N.T. 1/14/81 at 19)

In response to Detective Scott's call, the assistant district attorney sent a teletype via N.C.I.C. on October 23, 1980 informing Scott that appellant was still wanted and he would extradite if the detective apprehended him. After the assistant district attorney was notified by Detective Scott that appellant was in custody and had waived extradition, Dalfonso prepared an order of court the next day, October 31, 1980, directing the Sheriff's Office of Allegheny County to return appellant to this Commonwealth.*fn4 On

[ 318 Pa. Super. Page 352]

November 6, 1980, appellant was finally housed in the Allegheny County Jail. At this point, it requires mentioning that all that has been discussed relates directly to appellant's first Rule 1100 hearing held on January 14, 1981. By Opinion and Order dated February 12, 1981, the presiding judge "held that the defendant was unavailable for trial between March 21, 1979, and November 6, 1980. Therefore, defendant's trial date [was set for] May 4, 1981." (Lower Court Opinion at 5) Thereafter, on April 30, 1981, appellant's counsel filed a "Motion to Dismiss" (Motion) and a second Rule 1100 hearing was held to determine if "the defense ha[d] new evidence."

At the hearing, the only one of two witnesses (the other being the appellant), David R. Flick, supervisor of the Pennsylvania Board of Probation and Parole (Board), took the stand and remarked that the Board declared appellant delinquent on April 17, 1979 for not reporting to his parole officer. Consequently, the Board utilized N.C.I.C. to alert law enforcement officials that appellant was wanted. By transcription over the N.C.I.C. computer dated September 29, 1979, the Board was informed that appellant was "apprehended by police [in] Little Falls, ...

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