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filed: November 10, 1988.


Appeal from the Judgment of Sentence of October 15, 1987 in the Court of Common Pleas of Philadelphia County, Criminal, No. 86-08-1788/1789.


Thomas J. Turner, III, Philadelphia, for appellant.

Peter Ainsworth, Assistant District Attorney, Philadelphia, for Com., appellee.

McEwen, Olszewski and Cercone, JJ.

Author: Mcewen

[ 379 Pa. Super. Page 504]

We here consider an appeal from the judgment of sentence imposed by the distinguished Judge David N. Savitt following a finding by the jury that appellant was guilty of first degree murder and robbery. The jury was subsequently unable to agree upon the sentence for murder and, as a result, the trial court removed the matter from the jury, and following the denial of post-verdict motions, sentenced appellant to serve a term of life imprisonment for

[ 379 Pa. Super. Page 505]

    murder, and a consecutive term of imprisonment of from eight years to sixteen years for robbery.

In the early morning hours of December 20, 1984, an assailant knocked Nancy Bolden to the ground after she apparently resisted an attempt to take her purse. The assailant then dragged her into an alley, stripped her of most of her clothing, and brutally beat her, before leaving her partially clothed body covered by a trash bag. Approximately three hours later, appellant Middleton was arrested for the robbery of Ethel Henry approximately four to six blocks away from the area where the assault on Nancy Bolden had occurred. Ms. Bolden died some three months later from the injuries inflicted by her assailant, and approximately fifteen months later, appellant was arrested and charged with her murder.

Middleton first alleges that the trial court erred in denying his motion to dismiss due to prearrest delay. He argues that the Commonwealth intentionally, unreasonably or recklessly delayed his arrest and that he was harmed by the lengthy delay between the date of the crime and his arrest. Specifically, he claims he suffered a loss of memory, rendering him unable to effectively present his testimony and the testimony of others in support of his alibi defense. See Commonwealth v. Berry, 355 Pa. Super. 243, 513 A.2d 410 (1986). Furthermore, he contends that the Commonwealth was, within six months of the date of the crime, in possession of all the evidence used at trial.

The Commonwealth maintains that an investigatory delay, if reasonable, does not violate due process, even if a defendant is actually prejudiced in the preparation of his defense as a result of the delay. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). The Commonwealth argues that Middleton failed to substantiate his claim that the prearrest delay prejudiced him in his defense. The prosecution relies for this argument upon the testimony of appellant himself at the pre-trial hearing of May 18, 1987, a hearing held some two years after the death of the

[ 379 Pa. Super. Page 506]

    victim and almost ten months after the arrest of appellant. Appellant, at the pre-trial hearing, testified in detail as to his activities during the afternoon of December 19, and the early morning of December 20, when the victim was beaten and robbed. The Commonwealth also argues that the arrest of appellant some fifteen months after the death of Ms. Bolden could not have been unexpected by appellant since at the time of his arrest for the robbery of Mrs. Henry, appellant was informed by the police that he was a suspect in another crime, his clothes were taken for analysis, and patches of his hair were secured for tests. Further, within three months of Ms. Bolden's death, appellant was interrogated by the police about the crime and even underwent lie detector tests, at which time he definitely became aware he was a suspect in the instant murder. While the actual arrest was delayed a further twelve months, appellant was, nonetheless, pursuing his defense since, he testified, his sisters undertook efforts to locate the two young ladies and the bartender in the club where he asserted he had been drinking when the instant murder took place.

The Commonwealth asserts that it conclusively established that any delay prior to Middleton's arrest was a necessary result of a careful and thorough investigation. Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976) (defendant not denied due process despite four year prearrest delay because police encountered difficulty in putting together the case and because defendant was on notice that he was a suspect). The detective in charge of the investigation of Ms. Bolden's death testified (1) that numerous pieces of evidence had to be sent to the FBI crime laboratories for analysis, (2) that interviews with potential witnesses had to be conducted, and (3) that the only eyewitness to the crime could not be located for several months.

Appellant urges that the trial court abused its discretion in finding reasonable investigatory delay because the Commonwealth's explanation for the delay was contradictory. However, the conclusion of the trial court that the delay

[ 379 Pa. Super. Page 507]

    was reasonable is a determination which is within the discretion of the trial court, whose decision may not be reversed unless there is insufficient evidence in the record to support the court's determination. Our review of the record reveals an ample evidentiary basis to support the trial court's finding that the delay was reasonable. Therefore, this argument is rejected.

Appellant also contends that the admission of evidence of the attack on Ms. Henry constituted reversible error because the circumstances of that robbery were not so similar to the instant case as to identify them both as the product of a "common scheme." The trial court, however, found that the evidence of the attack upon Ms. Henry was relevant and admissible on the issue of identification based upon the following similarities between the two crimes: (1) the attacks occurred within three hours of each other; (2) near alleyways which were only six blocks apart; (3) both victims were women, (4) walking alone, and (5) while Ms. Henry was elderly, Ms. Bolden appeared to be elderly; (6) both victims were called "bitch" by the attacker; (7) an eyewitness to the attack upon Ms. Bolden identified the black coat found near the scene of the attack upon Ms. Henry as the same or similar to the one worn by the perpetrator of the attack upon Ms. Bolden; (8) both the black coat and Ms. Bolden's body, when discovered, were covered with excrement, as was ...

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