No. 1518 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, at Nos. 2030-2035, July Term, 1980.
John P. Cotter, Philadelphia, for appellant.
Leslie Ann Sudock, Assistant District Attorney, Philadelphia, for Com., appellee.
Wickersham, Montemuro and Montgomery, JJ.
[ 333 Pa. Super. Page 294]
This is an appeal from judgment of sentence. On October 29, 1981, following a trial before the Honorable John J. Chiovero and a jury, the appellant, Darryl Jorden, was found guilty of rape,*fn1 criminal conspiracy,*fn2 and possessing instruments of crime.*fn3 The appellant's post-verdict motions for a new trial and in arrest of judgment were filed, briefed, and argued, but denied by the court. On May 10, 1982, the appellant was sentenced to five (5) to ten (10) years imprisonment on the conspiracy charge, two and one-half (2 1/2) to five (5) years imprisonment on the weapons charge, and seven and one-half (7 1/2) to fifteen (15) years imprisonment on the rape charge. A motion to modify sentence was subsequently filed; but also denied.
The appellant asserts five instances of error by the trial court. We have carefully reviewed the appellant's arguments in conjunction with the entire certified record and the relevant law, and conclude that his arguments are without merit.
The instant charges arose out of an incident on July 1, 1980, the facts of which are clearly set forth in the Opinion of Judge Chiovero, filed pursuant to Pa.R.A.P. 1925.
On July 1, 1980 the Complainant, Kelly Mock, and several friends were at 2539 North 29th Street in Philadelphia. The Defendant, Darryl [sic] Jorden, and Co-Conspirator, Duwayne Johnson, were admitted to said premises by one of the guests. While Duwayne Johnson was arguing with one of the guests, the Defendant seized the Complainant at knife point and stated, "We can do this the easy way or the hard way." The Defendant then cut
[ 333 Pa. Super. Page 295]
the Complainant's hair with the knife stating, "This is the hard way."
The Defendant and Duwayne Johnson held the Complainant's arms and forced her into the kitchen. At this point the Defendant was holding a hammer and Duwayne Johnson was in possession of a knife. Duwayne Johnson left the Defendant and the Complainant alone in the kitchen. The Defendant knocked the Complainant on the floor and removed her pants. He then forced her to have sexual intercourse with him during which time the Complainant protested. Shortly after, Duwayne Johnson returned to the kitchen and also forced the Complainant to have sexual intercourse with him.
During this time, one of the guests waived down Police Officer Foster Morgan who was driving a marked police car in the 2500 block of North 29th Street. Shortly thereafter the Defendant and Duwayne Johnson were apprehended by the Philadelphia Police. (Footnotes omitted).
Lower Court Opinion, at 2.
The appellant initially argues that the trial court erred in denying his petition to dismiss pursuant to Pa.R.Crim.P. 1100. The relevant facts are as follows: A criminal complaint was filed on July 2, 1980; thus the mechanical run date for Rule 1100 purposes was December 29, 1980. On November 13, 1980, the appellant signed a waiver of his Rule 1100 rights until January 30, 1981. On January 28, 1981, the Commonwealth filed a petition to extend the run date; however, on the next day, the appellant signed a second waiver of his Rule 1100 rights until April 17, 1981. Trial was scheduled for April 13, 1981.
On April 13, 1981, a hearing was held on appellant's pretrial motions. A motion to suppress physical evidence and the statement of co-defendant, Duwayne Johnson, was denied. A motion to sever appellant's trial from that of co-defendant was granted. On April 15, 1981, the appellant
[ 333 Pa. Super. Page 296]
again signed a waiver of his Rule 1100 rights until July 15, 1981. Trial was scheduled for June 22, 1981.*fn4
On June 22, 1981, the case was called to trial; however, the appellant, who had been free on bail, failed to appear. Judge Chiovero, presiding over the trial (as well as Johnson's), issued a bench warrant, subject to the instruction: "Hold, bring before Judge Chiovero only
On July 13, 1981, the Commonwealth filed a petition to extend the run date, citing the appellant's default in appearance and alleging that they would not be able to bring the appellant to trial before July 15, 1981, despite due diligence.
On August 6, 1981, the appellant was captured. At that time, Judge Chiovero was away on vacation. On September 10, 1981, shortly after Judge Chiovero's return, a hearing was held on the bench warrant and bail was revoked. Judge Chiovero also scheduled a hearing on the Commonwealth's petition to extend on September 21, 1981. Due to defense counsel's unavailability, the hearing was not held until September 22, 1981. Following the hearing, the court directed both parties to submit memoranda on the Rule 1100 issues. The appellant then executed a waiver of his Rule 1100 rights until November 16, 1981, reserving any objection he had to violation of Rule 1100 occurring in the period between August 7 and September 22. The case was listed for trial on October 16, 1981.
On September 30, 1981, the appellant filed a motion to dismiss under Rule 1100(f). On October 16, 1981, the court heard argument on both the Commonwealth's petition to extend and the appellant's petition to dismiss. At the conclusion of argument, the court granted the petition of the Commonwealth and extended the run date to ...