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submitted: January 19, 1989.


Appeal form the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 3241, 3243, 3245, 3246 & 3247 OCT TERM 1984.


Brian R. Williams, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Cirillo, President Judge, and Beck and Tamilia, JJ. Beck, J., concurs.

Author: Tamilia

[ 386 Pa. Super. Page 167]

Appellant was tried by a jury and found guilty on February 26, 1987 of robbery, burglary, aggravated assault, criminal conspiracy and possessing an instrument of crime. He was sentenced to three consecutive terms of imprisonment totaling 15 to 50 years (robbery, 5-20 years; burglary, 5-20 years; aggravated assault, 5-10 years) and two concurrent terms of imprisonment totaling 5 1/2 to 15 years (conspiracy, 3-10 years; possessing instrument of crime, 2 1/2 to 5 years). Seven issues are raised on appeal: 1) whether the court erred in failing to dismiss the case under Rule 1100; 2) whether the court erred in refusing to suppress identifications by Father Rock; 3) whether the court erred by refusing to suppress physical evidence; 4) whether the court erred in refusing to suppress the defendant's pre-trial statements; 5) whether the court erred by refusing to declare a mistrial; 6) whether the court erred by refusing to dismiss all charges, after it became known that the Commonwealth destroyed key evidence; and 7) whether the court imposed an illegal and improper sentence.

[ 386 Pa. Super. Page 168]

On October 4, 1984, at approximately 4:00 a.m., Father Richard Rock of the St. Vincent DePaul Roman Catholic Church in Philadelphia arose from sleeping to go to the bathroom. His bedroom was on the second floor of the rectory and as he walked down the hallway he heard the television playing in the T.V. room. As he approached the room to investigate, he saw a person's shadow on the door frame leading him to believe the person was a black male, 5'6" -- 5'7", and 150-160 pounds. The man immediately jumped out and hit Father Rock over the head and again in the mouth with a metal pipe and then fled. During the attack Father Rock did not see the man's full face but did see the man's profile.

Father Gregory Cozzubbo awoke after hearing Father Rock's cries for help and looked out the window to see two people running across the rectory's front yard toward the parish cars. He noticed one person wore a short-waisted dark jacket and light trousers. Father Rock later stated his attacker was wearing a short, black jacket.

The police were called to the rectory and one patrol car, while entering the rectory driveway, was almost hit by a Ford Maverick occupied by two black males as they were backing out of the driveway. The Maverick was being driven at a very high rate of speed and crashed into a tree before speeding down the street. Three police cruisers chased the car and finally it smashed into a brick wall, bounced off the wall and hit two parked cars. The driver attempted to flee but was grabbed and frisked by an officer because the officer noticed his pockets were bulging. The driver was later identified as Charles Bell, appellant, and several items found in his pockets and inside the Maverick were identified by Father Rock as rectory property.

The two males were transported to the rectory and Father Rock, prior to going to the hospital, identified appellant as his attacker even though appellant was bleeding and had a lump on his head. Appellant was taken to the hospital for treatment of his injuries sustained in the crash and then to the police station. Appellant indicated he wanted to make a

[ 386 Pa. Super. Page 169]

    statement so he was read his Miranda rights and interviewed by Detective Frank Jastrzembski.

The detective noticed appellant's breath smelled of alcohol and questioned him about it. Appellant admitted he had been drinking but Detective Jastrzembski continued the interview since appellant was able to understand the questions, answer them and sign his name at the end of the interview form. In his statement, appellant limited his role to merely waiting outside in the Maverick while his cohort broke into and ransacked the rectory.*fn1

A criminal complaint was filed against appellant on October 4, 1984 but he did not come to trial until February 18, 1987; therefore, he claims his right to a speedy trial was violated and the charges should have been dismissed pursuant to Pa.R.Crim.P. 1100.

Appellant's argument, however, is based upon the fact that he was incarcerated from the time of arrest until the time of trial so none of the delay is attributable to him. This argument ignores the fact that an attorney, acting for appellant, can cause delay attributable to appellant which is excludable under Rule 1100. See Commonwealth v. Wells, 513 Pa. 463, 521 A.2d 1388 (1987). Also, appellant does not allege the Commonwealth failed to exercise due diligence in bringing him to trial. Rather, appellant complains he was not given a speedy trial because the court was unavailable and alleges, according to Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the ...

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