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decided: September 25, 1986.


Appeal from the Order Entered July 11, 1984, by the Court of Common Pleas of Cumberland County, Pennsylvania at 554 Criminal 1982.


J. Michael Eakin, Dist. Atty., Merle L. Ebert, 1st Asst. Dist. Atty., for appellant.

Carol F. Munson, Public Defender, Frederick I. Huganir, Carlisle, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Flaherty, McDermott, Hutchinson and Papadakos, JJ., join this opinion of the court. Hutchinson, J., filed a concurring opinion joined by McDermott, J. Zappala, J., filed a dissenting opinion.

Author: Larsen

[ 511 Pa. Page 454]


This appeal by the Commonwealth is from an order of the Superior Court affirming an order of the Cumberland County Common Pleas Court arresting judgment and dismissing all charges against the appellee, John Robert Koonce. The lower court arrested judgment and dismissed the charges after holding that the appellee was tried in violation of Rule 1100 of the Pa.R.Crim.Pro. which requires that criminal defendants be brought to trial within 180 days of the filing of a criminal complaint. The lower court concluded that Rule 1100 was violated even though prior to trial the

[ 511 Pa. Page 455]

Commonwealth, pursuant to the Rule, petitioned for and obtained an extension of time permitting the appellee's trial to begin beyond the 180-day time requirement. The lower court ruled and the Superior Court affirmed on the lower court's opinion, that the Commonwealth failed to act with due diligence in attempting to bring the appellee to trial, and therefore, the extension of time granted to the Commonwealth was invalid. We disagree with the conclusion that the Commonwealth failed to demonstrate due diligence and that the extension of time granted by the court was improper. We, therefore reverse.

David Lee Gill (Gill) and Timothy Henry Epps (Epps) were sailors in the United States Navy stationed in Philadelphia, Pa. On the evening of February 12, 1982, Gill and Epps were on leave, traveling by auto from Philadelphia to Charleston, West Virginia. The automobile they were riding in was owned by Epps. At or about 10 o'clock p.m. they stopped for the night at a Best Western motel in Carlisle, Pa. After checking in, they went to their room, unpacked some of their belongings, watched television for a short time and then went to a lounge located in a lower level of the motel. In the lounge they sat at the bar and had some drinks, keeping pretty much to themselves. It was between midnight and 1:00 a.m. when they returned to their room.

Shortly after they arrived back in their room, the appellee and another man knocked on the door. Both were strangers, but they were admitted to the room, supposedly to discuss the alleged harrassment of a certain woman that occurred earlier in the lounge. After talking a while the appellee said he had made a mistake as to the identity of Gill and Epps and he and the other man began to leave. Moments after they went out the door, and before the door was completely closed, the appellee and his accomplice burst violently back into the room. The appellee was wielding a wooden club and his accomplice was brandishing a handgun. The appellee, without provocation, began to viciously beat Epps with the club while his accomplice pistol whipped Gill after ordering Gill to lie on his stomach on the floor of the

[ 511 Pa. Page 456]

    bathroom. The senseless beatings opened wounds on the victims spilling their blood about the room especially in the area where Gill was pistol whipped. The battered victims were made to wipe up the bloody mess, using the motel towels. After they cleaned up the blood as ordered, the victims were then made to put on their outer coats and leave the room. With the appellee leading the way and his cohort at the rear with pistol in hand, Gill and Epps were forced to walk into the cold winter night. The forced march took them 1/8 to 1/4 of a mile away from the motel into a secluded wooded area. When they reached a small stream, they were savagely attacked again. Epps was repeatedly beaten with the wooden club and Gill with the pistol. While the appellee was pummelling Epps with the club, appellee apparently noticed that Epps had a folding knife attached to his belt. Appellee took the knife and used it to stab Epps, opening wounds in his chest, back and face near his right eye. Appellee then gave the knife over to his accomplice who used it on Gill. Gill was stabbed in the chest and in the throat, directly below his adam's apple. Unconscious and bleeding from the beatings and the knife wounds, Gill and Epps were left for dead lying in the woods. The appellee and his accomplice returned to the motel, took some of the victims' belongings from their room, stole Epps' automobile and left the state. Miraculously, Gill and Epps managed to get help and survived.

On February 13, 1982, the appellee was charged in Cumberland County, Pennsylvania, with two counts of criminal attempt of criminal homicide, two counts of robbery, two counts of aggravated assault, two counts of felonious restraint and one count of theft by unlawful taking. On February 16, 1982 the appellee was arrested in Danville, Virginia on charges originating there. Pennsylvania authorities were notified immediately of appellee's arrest in Danville.

On February 17, 1982, Pennsylvania state troopers travelled to Danville and formally lodged a detainer against the appellee. Subsequently, there were various communications between the Cumberland County district attorney

[ 511 Pa. Page 457]

(district attorney) and the Virginia authorities. On May 27, 1982, the district attorney sought temporary custody of the appellee through the Interstate Agreement on Detainers Act.*fn1 (Detainers Act) The Virginia authorities responded that since the appellee had not as yet been sentenced in Virginia, he was not amenable to the procedures of the Detainers Act.*fn2

On August 8, 1982, the Commonwealth brought a petition in the Cumberland County Common Pleas Court seeking an extension of time within which to bring the appellee to trial. The petition alleged that in spite of diligent efforts, the Commonwealth was unable to obtain custody of the appellee so that he could be tried within the required 180 days. At the hearing on the Commonwealth's petition, the appellee was represented by counsel who offered no opposition to the averments or prayer for relief. The Commonwealth's ...

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