No. 2849 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 597, 599, 600 October Term, 1975.
Dana Rakinic, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Brosky and Beck, JJ. Beck, J., files a dissenting opinion.
[ 322 Pa. Super. Page 18]
On May 6, 1976, appellant was tried non-jury in the Court of Common Pleas of Philadelphia County. He was convicted of robbery,*fn1 simple assault*fn2 and criminal conspiracy.*fn3 Appellant then fled the jurisdiction to Puerto Rico and failed to appear for sentencing. He was apprehended in February, 1981. Argument on post-verdict motions was continued to October 19, 1981, due to a series of continuances requested by appellant's counsel. Post-verdict motions were denied and a five year period of probation was imposed on the criminal conspiracy conviction, while sentences on the robbery and simple assault convictions were suspended.
The facts of the case are as follows:
On January 3, 1974, at approximately 2:00 a.m. in the Randolph Club's parking lot on Fifth Street in Downtown Philadelphia, Estoban Montalvo was surrounded by five or six men, one of which was appellant. One man grabbed Mr. Montalvo around the neck while the others, including appellant, grabbed him around the waist. The men proceeded to take Mr. Montalvo's wallet and watch. Mr. Montalvo had approximately $200.00 dollars in his wallet while his watch was valued at approximately $35.00. Subsequently, the men fled north on Fifth Street.
[ 322 Pa. Super. Page 19]
Appellant raises two issues on appeal: (1) whether the appellant's Rule 1100 rights were violated; and (2) whether appellant's trial counsel was ineffective in not raising a motion to dismiss under Rule 1100. Appellant specifically contends that since the complaint in this case was sworn on October 22, 1974, and appellant was not arrested until August 2, 1975, that his trial counsel should have filed a motion to dismiss under Rule 1100 since he originally waived his 180-day rights on December 8, 1975. It is to be noted that the period between the date of the filing of the complaint and the date of appellant's arrest would be excludable time from the 180-day limit if the Commonwealth, by a preponderance of the evidence, proves that the police exercised due diligence in trying to locate appellant. See Pa.R.Crim.P. 1100(d)(1); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Dorsey, 294 Pa. Super. 584, 440 A.2d 619 (1982); Commonwealth v. Jones, 256 Pa. Super. 366, 389 A.2d 1167 (1978).
However, we will first consider whether appellant's seven year delay in raising this issue bars consideration of the merits of his claim. It is to be noted that the delay here in raising this issue was solely occasioned by appellant's fleeing the jurisdiction following his conviction. Seven years have passed since appellant robbed and assaulted Mr. Montalvo, the Commonwealth would be severely prejudiced in attempting to meet its' burden of due diligence in apprehending appellant, due to the possibility of dimmed memories and difficulty in locating witnesses. Also, this delay was solely the result of appellant fleeing the jurisdiction. We are of the opinion that appellant's delay bars consideration of the merits of his claim. Commonwealth ex rel. Diggs v. Banmiller, 191 Pa. Super. 101, 155 A.2d 402 (1959); Commonwealth ex rel. Robinson v. Cavell, 185 Pa. Super. 52, 138 A.2d 172 (1958); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982) (Roberts, J., joined by O'Brien, C.J., and Nix, J., concurring); Commonwealth v. Minarik, 493 Pa. 573,
[ 322 Pa. Super. Page 20427]
A.2d 623 (1981) (Roberts, J., joined by O'Brien, C.J., and Nix, ...