Appeal from the PCHA Order entered February 15, 1984, Court of Common Pleas, Philadelphia County, Criminal Division at Nos. 1601-1606 May Term, 1974.
Marilyn J. Gelb, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Olszewski, Del Sole and Johnson, JJ.
[ 343 Pa. Super. Page 469]
Appellant, Arnell Thompson, takes this appeal from the order denying his request for relief under the Post Conviction Hearing Act (PCHA).*fn1 Appellant raises three issues for our consideration:
[ 343 Pa. Super. Page 470]
I. Where appellant was not brought to trial within one hundred and twenty days after his arrival in Pennsylvania pursuant to the Interstate Agreement on Detainers, were trial and appellate counsel ineffective for failure to move to dismiss the indictments and for failure to preserve this meritorious issue on direct appeal?
II. Where conviction of robbery and aggravated assault have arisen out of the same transaction, was appellant's consecutive sentence on the aggravated assault charge illegal?
III. Where no record of appellant's sentencing proceeding can be located, and appellant is hereby precluded from raising the issue that the sentencing judge did not state the reasons for his sentence on the record, should appellant be afforded a new sentencing proceeding?
Finding none of these issues to have merit, we affirm.
On April 20, 1974, appellant was arrested for the shooting and robbery of a Philadelphia physician, Dr. Ross Noll. Thereafter, appellant absented himself numerous times from the jurisdiction, as we detailed more fully in appellant's direct appeal. Commonwealth v. Thompson, 262 Pa. Super. 211, 396 A.2d 720 (1978). Ultimately, appellant was located in a New York prison and was returned to Pennsylvania on June 23, 1976 by detainer, as per the provisions of the Interstate Agreement on Detainers Act [IAD].*fn2 Trial was set for July 27, 1976. On July 23, 1976, appellant filed a motion to dismiss under Pa.R.Crim.P. 1100(f). Appellant's case was called for trial on July 27, 1976, but a seven-day continuance was ordered by the court to allow for consideration of appellant's Rule 1100 petition. On August 3, 1976, appellant's Rule 1100 motion was denied. On October 26, 1976 a hearing was held on appellant's motion to suppress. Appellant's trial commenced on October 27, 1976, one hundred and twenty-seven days after appellant's return by detainer from New York.
The relevant provision of the IAD reads:
[ 343 Pa. Super. Page 471]
(c) In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
42 Pa.C.S. § 9101 Article IV(c).
The supreme court has stated of the IAD that "[t]he purpose sought to be achieved by this act is to promote and foster prisoner treatment and rehabilitation programs by eliminating the uncertainties which accompany the filing of detainers." Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973). Our court, referring to Fisher, has noted, "When the defendant causes the delay he is not entitled to be discharged. See e.g., People v. Leonard, 18 Ill.App.3d 527, 310 N.E.2d 15 (1974)." Commonwealth v. Wilson, 231 Pa. Super. 451, 454 n. 6, 331 A.2d 792, 794 n. 6 (1974). In Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979), the defendant, six days before the running of the IAD period, consented to a continuance of the trial. On the new trial date, trial was again delayed because the defendant filed a motion to dismiss the charges for violation of the IAD. The supreme court found no violation of the IAD under these facts. The court held that the running of the period was tolled either by the defendant's consent or by his own actions. In so ruling, the court cited to Article VI(a) of the IAD, which provides: " [T]he running of said periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter." (Emphasis added). Cf. Commonwealth v. Kripplebauer, 322 Pa. Super. 317, 469 A.2d 639 (1983) (plurality) (Where defendant merely exercised his right under Pa.R.Crim.P. 307 by requesting a period of thirty days after his preliminary hearing in which to file his pre-trial motions, defendant neither voluntarily waived his speedy trial rights nor consented to their waiver per Commonwealth v. Washington, supra.)
[ 343 Pa. Super. Page 472]
Returning to the facts of the instant case we find, in keeping with Washington, supra, that there has been no violation of the IAD. When appellant filed his Rule 1100 motion, the court ordered that trial, set for July 27, 1976, be continued for seven days. Neither appellant nor his counsel objected to this seven-day continuance. See Commonwealth v. Diggs, 334 Pa. Super. 268, 482 A.2d 1329 (1984). As we previously noted, Article IV(c) provides that "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance" 42 Pa.C.S. § 9101 Article IV(c). On the facts of the instant case, we find that the court properly granted a "necessary and reasonable" continuance "for good cause shown," occasioned by appellant's motion to dismiss under Rule 1100(f). When this seven-day continuance is excluded from the time period, it can be determined that appellant's rights under the IAD were not violated because appellant was tried within 120 days of his return to Pennsylvania by detainer. As for appellant's claim that trial ...