Appeal from the Judgment of Sentence Docketed December 19, 1988 in the Court of Common Pleas of Snyder County Criminal Division, No. 28-1988.
Mark H. Lemon, Miffinburg, for appellant.
John T. Robinson, Dist. Atty., Selinsgrove, for Com.
Wieand, Montemuro and Cercone, JJ.
[ 387 Pa. Super. Page 235]
This is an appeal from the judgment of sentence. After a jury trial, appellant, Ricky L. Shaffer was convicted of felony retail theft.*fn1 Appellant's motion for new trial and in arrest of judgment was denied after a hearing. He was sentenced to incarceration for not less than three (3) nor more than six (6) years. Appellant filed a timely motion to modify sentence which was denied without a hearing. This prompt appeal followed. We affirm.
The procedural facts underlying this case are as follows. On August 31, 1987 a complaint was filed charging appellant with felony retail theft. From August 1987 to October 30, 1987, appellant's whereabouts were unknown and his location was sought. The police officer in charge of the investigation relayed the appellant's name to his state police counterparts in York, Pennsylvania because he had received information regarding appellant's residential address from the York police.
Sometime in October, 1987, appellant was located in Clinton County jail as an inmate, but the police officer did not receive personal knowledge until mid-November after a training session in Hershey. In the officer's absence, and upon receipt of the information about appellant's whereabouts, a duplicate warrant was obtained and filed as a detainer against the appellant in Clinton County. On January 14, 1988, appellant was arrested for the charges in the instant case. He remained incarcerated and was not released on bond. On January 25, 1988, a preliminary hearing
[ 387 Pa. Super. Page 236]
was scheduled and had to be continued due to the unavailability of the police officer. On January 27, 1988, the rescheduled preliminary hearing needed to be postponed again to allow the appellant time to secure counsel. On February 9, 1988, when the preliminary hearing was ultimately heard, the appellant was held for court. He was arraigned on March 30, 1988. Voir dire was conducted on May 16, 1988 and appellant was convicted on May 27, 1988.
Appellant's contention on appeal is that the Commonwealth failed to exercise due diligence in bringing him to trial within the time period allotted by the mandates of Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A., since appellant's trial was not held until two hundred fifty-seven (257) days after the filing of the criminal complaint. On December 31, 1987, after the complaint in the instant case had been signed and before one hundred eighty (180) days had expired, Rule 1100 was amended by our supreme court. The amended rule became effective immediately. In Commonwealth v. Palmer, 384 Pa. Super. 379, 558 A.2d 882 (1989) we held that the amended speedy trial rule would not violate statutory proscription against retroactive application. The facts underlying Palmer are strikingly similar to the facts in the instant case.
In Palmer, on October 2, 1987, a criminal complaint had been signed in which the defendant was charged with drug-related offenses. Before 180 days had expired, Rule 1100 was amended by our supreme court on December 31, 1987 and effective immediately. Under these circumstances, we held that the amended rule was applicable to the prosecution against Palmer and that the trial court erred in dismissing the charges against the defendant because the time allowed for trial by the amended rule had not ...