No. 02220 PHL 82, Appeal from the Judgment of Sentence of July 20, 1982 in the Court of Common Pleas of Montgomery County, Criminal Division, at No. 1776 of 1980.
Lawrence A. Ruth, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Wieand and Hoffman, JJ.
[ 336 Pa. Super. Page 401]
Appellant contends that (1) his speedy trial rights were violated, (2) the trial judge made numerous errors, and (3) his trial counsel was ineffective. We find these contentions meritless and, accordingly, affirm.
On February 26, 1980, appellant was arrested on charges of rape, involuntary deviate sexual intercourse, indecent assault and corruption of a minor. He was arraigned on March 3, 1980, and a preliminary hearing was scheduled for ten days later. On March 13, 1980, a snowstorm closed the district court, and the preliminary hearing was rescheduled for March 21, 1980. On that date, appellant failed to appear. He was arrested in Wyoming two and one-half months later and returned to the Commonwealth on June 5, 1980. His preliminary hearing was held on June 11, 1980 and continued to June 18. Following an October 20-23, 1980 jury trial, appellant was found guilty of all charges except the rape charge. Post-verdict motions were denied on May 18, 1982, and on July 20, appellant was sentenced to a term of imprisonment of eight-to-twenty years. This appeal followed.
Appellant first contends that he was denied a speedy disposition of the charges filed against him. He alleges that his preliminary hearing was not timely and that he did not receive notice of it. Pa.R.Crim.P. 140(d) provides that a preliminary hearing shall be scheduled "not less than three nor more than ten days after preliminary arraignment unless extended for good cause shown," and that the defendant shall have notice of the time and place of the hearing. Here, we find that the snowstorm was good cause for rescheduling the preliminary hearing for March 21,
[ 336 Pa. Super. Page 4021980]
, beyond the ten day limitation. We also find appellant's claim that he was not given notice of the hearing to be without merit. Detective Raymond Bechtel testified that, on March 13, 1980, the district judge advised appellant by phone of the date and time of the rescheduled hearing. (N.T., Rule 1100 Hearing, October 20, 1980 at 25).
Appellant also argues that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated. Rule 1100(a)(2) provides that trial in a court case must commence within 180 days from the date on which the criminal complaint is filed. In making that computation, however, any periods of time in which the defendant was unavailable are excluded. Pa.R.Crim.P. 1100(d)(3)(i). Here, we find that appellant was unavailable from the time he failed to appear for the March 21, 1980 hearing until his June 5, extradition from Wyoming, a period of seventy-six days. Excluding that period, the Rule 1100 run date is extended to November 4, 1980, 256 days from the date the complaint was filed. Because the trial commenced on October 20, 1980, we hold that Rule 1100 was not violated.*fn1
Appellant next contends that the eleven month delay between the argument of his post-verdict motions and the order denying them was excessive. Pa.R.Crim.P. 1122 provides that post-verdict motions must be decided within thirty days after argument, "except under unusual circumstances." Here, appellant's post-verdict motions were argued on May 18, 1981. Because of the nature of these motions, two evidentiary hearings were held on July 14, 1981 and May 13, 1982. The delay in holding the second hearing was occasioned by the unavailability of a necessary witness who was in the ...