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COMMONWEALTH PENNSYLVANIA v. DAVID LEE MCCLAIN (02/03/84)

filed: February 3, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID LEE MCCLAIN, APPELLANT



No. 71 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Chester County Criminal Division, at No. 1405-80.

COUNSEL

Joann Selleck, Assistant Public Defender, West Chester, for appellant.

James R. Freeman, District Attorney, West Chester, for Commonwealth, appellee.

Spaeth, President Judge, and Popovich, and Hoffman, JJ. Spaeth, President Judge, concurs in the result.

Author: Hoffman

[ 325 Pa. Super. Page 31]

Appellant contends that the lower court erred in (1) denying appellant's motion to dismiss under Pa.R.Crim.P. 1100; (2) refusing to grant appellant's motion for a mistrial; and (3) admitting into evidence photographs of the victim. Finding all of appellant's claims without merit, we affirm the judgment of sentence.

On December 3, 1980, following a jury trial, appellant was found guilty of criminal attempt -- rape, robbery, aggravated assault, burglary, simple assault, and indecent assault. Appellant's timely motions for a new trial and in arrest of judgment were denied. On May 11, 1982, appellant received an aggregate sentence of ten-to-twenty-five years imprisonment on all charges. Pursuant to the timely filing of a motion for reconsideration of sentence, the sentencing

[ 325 Pa. Super. Page 32]

    court vacated appellant's sentence and ordered a neurologic and psychiatric evaluation of appellant. On December 22, 1982, the original sentence of ten-to-twenty-five years imprisonment was reimposed. This appeal followed.

Appellant alleges first that the lower court erred in denying his petition for a rule 1100 discharge. Specifically, appellant contends that the trial court erred in computing the 180-day period from the filing of the second complaint, rather than from the filing of the first. It is well settled that the 180-day period shall start running from the filing of the second complaint only if the following two-pronged test is satisfied: (1) the first complaint was properly dismissed; and (2) the record does not reflect an attempt by the prosecution to circumvent the requirements of Pa.R.Crim.P. 1100, Commonwealth v. Ardolino, 304 Pa. Superior Ct. 268, 450 A.2d 674 (1982); Commonwealth v. Sires, 284 Pa. Superior Ct. 50, 424 A.2d 1386 (1981); Commonwealth v. Navarro, 276 Pa. Superior Ct. 153, 419 A.2d 141 (1980), aff'd 499 Pa. 279, 453 A.2d 308, 309 (1982); Commonwealth v. Brocklehurst, 266 Pa. Superior Ct. 335, 404 A.2d 1317 (1979), aff'd 491 Pa. 151, 420 A.2d 385 (1980); Commonwealth v. Brennan, 264 Pa. Superior Ct. 206, 399 A.2d 739 (1979); Commonwealth v. Mumich, 239 Pa. Superior Ct. 209, 361 A.2d 359 (1976). While the second prong of the above test is clear,*fn1 our Court, with regard to the first prong, has interpreted "'[p]roper dismissal' . . . to mean that proceedings on the charges contained in the complaint were dismissed by a competent magisterial or judicial authority who committed no error of law in doing so. This would include, we think, dismissal for failure to make out a prima facie case." Commonwealth v. Ardolino, supra 304 Pa. Superior Ct. at 276, 450 A.2d at 679, quoting Commonwealth v. Brennan, supra 264 Pa. Superior Ct. at 210, 399 A.2d at 741 (citations omitted). So viewed, the facts are as

[ 325 Pa. Super. Page 33]

    follows: In the late afternoon of July 3, 1979, the victim, a 68-year-old woman, was sexually assaulted, beaten, and robbed in the first floor vestibule of her apartment building. The attack was interrupted by the shouts of a second-floor neighbor, Thomas Eggers, who observed the assault and chased away the assailant. Officer Earl Galloway of the Oxford Borough Police Department was the investigating officer assigned to this case. At the time of his investigation, Officer Galloway had two months of police experience. In addition to interviewing the victim and obtaining a description of her attacker, Galloway spoke with the second-floor neighbor. Mr. Eggers identified the assailant as "McClain," a young man who had attended school with his sister. On July 24, 1979, a photographic line-up was presented to the victim and she identified appellant as the man who attacked her. On August 1, 1979, pursuant to the filing of a criminal complaint, appellant was arrested. A preliminary hearing was twice continued to allow for an in-person line-up. However, at the physical line-up the victim was unable to make an identification. At the preliminary hearing on August 22, 1979, the Commonwealth failed to produce any witnesses. The explanation for this failure was provided by Officer Galloway who stated that both Mr. Eggers and the victim had changed their respective addresses and that he "was having difficulty contacting Mr. Eggers and getting the people together for the hearing and getting information together." (N.T. November 24, 1980 at 52). ...


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