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filed: March 15, 1985.


No. 1072 Phila., 1982, Appeal from the Judgment of Sentence of January 23, 1978 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1273-1276, 1278, 1285, 1289 Sept. Term, 1975.


Richard H. Knox, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montemuro, Watkins and Cercone, JJ. Cercone, J., concurs in the result.

Author: Watkins

[ 340 Pa. Super. Page 239]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, Robert F. Cullen, after his conviction in a jury trial of six counts of robbery and conspiracy. Post-verdict motions were denied and the defendant was sentenced to a total of thirty (30) to sixty (60) years imprisonment. Defendant's original appeal to this Court was non-prossed*fn1 and this nunc pro tunc appeal followed.

[ 340 Pa. Super. Page 240]

The defendant was arrested on July 25, 1975 and charged with the armed robberies of five supermarkets and one restaurant in Philadelphia as well as conspiracy for those crimes. The defendant was tried with two co-defendants, John Adams and George Wallace. The evidence at trial established that between January 30, 1973 and June 21, 1974, the defendant and his co-defendants conspired to commit a series of robberies. In addition to the Philadelphia robberies, the defendant allegedly committed at least an additional fourteen robberies in the outlying counties of Pennsylvania and New Jersey. All of these robberies, however, were marked by a distinctive modus operandi.

On appeal, the defendant raises nine issues which we will discuss individually.

I. RULE 1100.

Appellant argues that the court erred in denying his motion to dismiss the charges in accordance with Pa.Rule of Criminal Procedures 1100 based upon two contentions: (1) Appellant was not brought to trial within 180 days of the issuance of the warrant for his arrest; and (2) The time period was not validly extended beyond the 180 day period.

With respect to appellant's first contention, Pa.Rule of Criminal Procedure 1100 requires that a defendant arrested after June 30, 1974 be tried within 180 days from the date the complaint was filed. Where defendant is arrested pursuant to a warrant issued on the basis of a complaint, the complaint is deemed to be "filed" when it is presented to the court for the purpose of having the warrant issued. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). The record clearly indicates the criminal complaint on which process issued was presented on June 27, 1975 to Judge George Woods of the Municipal Court of Philadelphia. Appellant's claim is without merit.

With respect to appellant's second contention, Rule 1100 places the obligation on the Commonwealth to commence

[ 340 Pa. Super. Page 241]

    trial no later than the prescribed time, unless excused upon showing of due diligence. Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). Section (c) of Rule 1100 provides the Commonwealth with an adequate procedural method to protect its right to effectuate a timely prosecution by filing a timely request for an extension of the time for the commencement of trial, where good cause for such a request is present. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

Defendant was a member of a group involved in an intricate scheme of criminality which was the trademark of the group which, in the interest of justice and judicial economy, dictated that the defendant should be tried with his co-conspirators. Commonwealth v. Hirsch, 225 Pa. Superior Ct. 494, 311 A.2d 679 (1973); Commonwealth v. Schwartz, 210 Pa. Superior Ct. 360, 233 A.2d 904 (1967). See Pa.R.Crim.Pro. 219. Defendant must have realized the need of a joint trial and never applied for a severance.

Due to significant defense delays resulting from the multiple defendants, the Commonwealth filed a petition to extend the original rule date of December 24, 1975. We hold that the first extension and all subsequent extensions were preceded by a timely request and granted for legally sufficient reasons by the court.

A petition for extending the date in which a trial must be commenced must be filed before the expiration date or any extension thereof. Pa.R.Crim.Pro. 1100(c); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975); Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977). Each of the petitions filed in this case, which resulted in the granting of a new run date, was timely filed. The petition filed February 27, 1976, which resulted in the order extending the date to March 29, 1976, preceded the newly established date of February 29, 1976. The application of March 29, 1976 was also timely filed.

[ 340 Pa. Super. Page 242]

Defendant asserts that his failure to receive proper notice of the first extension hearing as required by Section (c) of Rule 1100 renders invalid all extension of time. Rule 1100(c) requires the presence of the appellant or his counsel at any hearing to extend the "run date". A valid extension cannot be granted in the absence of the appellant or his counsel. Commonwealth v. Ray, 240 Pa. Superior Ct. 33, 360 A.2d 925 (1976); Commonwealth v. Patrick, 487 Pa. 15, 407 A.2d 382 (1979). Defendant's counsel admits he was notified of the first extension hearing and served with a copy of the petition. Defendant's failure to appear or request a continuance is deemed a consent to the extension. Commonwealth v. Taylor, 473 Pa. 400, 404-405, 374 A.2d 1274 (1977); Commonwealth v. Costigan, 272 Pa. Superior Ct. 520, 525, 416 A.2d 1018 (1979); Commonwealth v. Frank, 263 Pa. Superior Ct. 452, 398 A.2d 663 (1979). This is especially so where the sole contention is that the order was entered ex parte and he does not posit that he could have presented evidence which would have made for a different result. Commonwealth v. Taylor, supra. Appellant's claim is without merit.

Appellant asserts the Commonwealth failed to establish due diligence in bringing defendant's case to trial, which would justify the grant of its extension petitions. A timely application is properly granted when the trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Pa.R.Crim.Pro. 1100(c); Commonwealth v. Mayfield, supra; Commonwealth v. Gibson, 248 Pa. Superior Ct. 348, 375 A.2d 132 (1977); Commonwealth v. Jenkins, 248 Pa. Superior Ct. 300, 375 A.2d 107 (1977).

On each application for extension, there was sufficient evidence that, despite due diligence, the case could not be tried. Trial could not be held before December 24, 1975, the original run date, because defendant Adams and counsel for defendant Wallace were unavailable: the former in flight, and the latter undergoing surgery. These delays, while not directly chargeable to defendant under Pa.R.Crim.

[ 340 Pa. Super. Page 243]

Pro. 1100(d), justified granting the Commonwealth's first extension petition. Commonwealth v. Wharton, 250 Pa. Superior Ct. 25, 31, 378 A.2d 434 (1977); Commonwealth v. Jenkins, 248 ...

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