*1 action. This of such constitutionality consider sanction the assertion of such Court, however, should not It is incum- has not granted. which the legislature power authority under its general supervisory this Court bent terms the in no uncertain all the courts to prohibit over in a novel the court below jurisdiction assertion of had clear- already which this Court non-litigation proceeding of the court. the jurisdiction held is outside ly Pennsylvania COMMONWEALTH NICKOL, Appellant. Kenneth N. Pennsylvania.
Supreme Court 17, 1977. Submitted Oct. 23, 1977.
Decided Dec. *2 Miller and Defender, Bruce Cefalo, Michael J. Public S. Defenders, appellant. for F. Asst. Public Joseph Sklarosky, Glenn, Jr., appellee. Asst. Dist. Atty., Thomas J. O’BRIEN, ROBERTS, POM- EAGEN, J., Before and C. PACKEL, JJ. EROY, NIX, MANDERINO THE OPINION OF COURT POMEROY, Justice. Nickol, was convicted on January Kenneth
Appellant, degree, in a trial of murder of the second non-jury *3 a firearm without a license. Follow- and robbery carrying motions, denial of was sentenced to ing appellant post-trial and to terms of charge life on the murder imprisonment of seven and one-half to fifteen on the imprisonment years count to two on the firearms convic- robbery years and one tion to run These (the two latter sentences consecutively). We affirm the of sentence. judgments followed.1 appeals The record discloses that on April appellant, David, his brother and Debra Busse Knorr Angelo William Wilkes-Barre, in arrived at a in Pennsylvania, supermarket stopped along- an automobile driven Knorr. The vehicle by the motor while running side the market and the driver kept inside, Nickol proceeded the store. Once appellant entered and gun to the booth where he manager’s produced that a be filled with bag money. demanded paper Grozio, gave Michael observed these events and manager, appeal pursuant Appellate Jurisdiction 1. We hear this to the Court 211.202(1) July P.S. which Act of Act of places jurisdiction appeal appellant’s in this Court for the from jurisdiction appeal murder This has over the conviction. Court Superior the related convictions virtue of their transfer from the Court to this Court. chase to the as he fled the store. Outside appellant store, and fired a warning Nickol ordered Grozio stop, air; however, in pursuit. shot in the continued manager, Grozio, Nickol then turned and fired three or four shots at his in rejoined companions him. Nickol fatally wounding Hazelton, car and the four drove to where waiting they Nickol, were the next morning. apprehended by police however, arrest and remained at until his escaped large Collins, FBI on in Fort capture agents July waived extradition and on July Colorado. The appellant and was returned to Luzerne where he was tried County convicted.
Three errors are to have been made alleged pretrial by court of common which a new trial or a pleas require should ar- judgment It is also claimed be discharge. We rested on the offense for insufficient evidence. weapons in of these contentions. find no merit first contention is that an oral statement (1) Appellant’s after his arrest Colorado should given police shortly have been as the result of an suppressed unnecessary delay 130;2 between arrest arraignment. Pa.R.Crim.P. Com- Futch, monwealth v. 417 (1972). A.2d The Luzerne district office was notified County attorney’s arrest on and undertook July prepa- rations to have Nickol returned. three July On Wilkes- Colorado, Barre flew officers and on the following met with Nickol in the coffee room of the Lattimer morning Prison. Colorado Nickol was advised of his constitu- County them, subject tional and waived to the condition that rights, *4 he said would not be written down or anything taped. talk, Almost after Nickol confessed immediately starting to the and the of Grozio. The total time robbery shooting in this was about minutes. meeting forty-five consumed officers then left the made travel police prison, arrange- provides: 2. Rule 130 “When a defendant without a in a has been arrested warrant case, unnecessary delay court he be the taken without before
proper issuing authority complaint against where a shall be filed given preliminary arraignment.” him and he shall be an immediate
79
with Nickol
returned
and, on
following morning,
ments
the
July
of
evening
on the
arrived
they
to Wilkes-Barre where
a
taken before
17,
promptly
1974.
was
Appellant
and thereafter jailed.
arraigned
magistrate,
41
about
delay
the
of
is
that
appellant’s position
It
time
officers
and the
arraignment
hours between his
This claim borders
Rule 130.
arrived in Fort Collins violates
case, the
of this
the circumstances
on the frivolous. Under
be said to have
time,
considerable, cannot
although
lapse
Futch, supra.
v.
Commonwealth
unnecessary.
been
See
be
delay
instances of permissible
Our case law recognizes
is the
where such delay
tween arrest and arraignment
Com
procedures.
result of administrative
See
unavoidable
Pa.
A.2d
Whitson,
101,
(1975);
v.
461
334
653
monwealth
431, 326
458 Pa.
A.2d
v. Blagman,
Commonwealth
Futch,
Here the unusual
supra.
v.
(1974); Commonwealth
problems
with
attendant
involved,
the
together
distance
etc.,
of booking arrangements,
coordination
fatigue,
travel
Furthermore,
even were
delay.
satisfactorily justifies
time involved in taking
that some
we to conclude
not
there was
necessary,
clearly
to a
was
magistrate
of the
and the
delay
giving
inculpato
no nexus between the
confessed almost
after
immediately
statement. Nickol
ry
he
now
may
rely
delay
with the
not
on a
meeting
police;
to the
of that
statement to support
initial
subsequent
giving
”
Boone,
a “Futch claim.
Commonwealth v.
467 Pa.
See
Tervalon,
463 Pa.
(1976);
354 A.2d
Palmer,
A.2d 671
Commonwealth v.
463 Pa.
(1975);
Davis,
Commonwealth v.
(1975);
A.2d 275
(1975).
his decision
(2)
argues
next
that
to waive
Appellant
trial was
forced
involuntarily
unconstitutionally
is
on
fact
premised
him. The argument
permitted
at the time of trial
Crimes Code3
whereas
circumstances,
certain
of the death
under
penalty,
imposition
trial was
there was no
for the death
jury,
provision
where
Dec.
P.L.
amended
3. The Act of
No.
Dec.
No.
18 P.S.
1311.
*5
claimed,
in
trials.4 It is
penalty
non-jury
that
accordingly,
the appellant’s Sixth Amendment
trial
was
by jury
chilled. We have
impermissibly
previously considered and
rejected such an
in
argument
Commonwealth v. Bhillips
a/k/a Gergel,
(3) error, As a third of assignment Nickol claims that the lower court improperly granted Commonwealth peti tion for an extension of time within which to commence trial, and that in consequence, trial was not commenced within 270 of the days of the as filing complaint, required Pa.R.Crim.P. 1100.5 He by therefore claims that he is entitled to discharge. (b) See of Rule 1100. It paragraph is not however, to consider necessary, of the propriety continuance, record verifies that trial was com menced within the time allowed Rule 1100. Paragraph (d) of that rule provides that of periods due to the delay absence of the defendant be excluded from computa tion of the 270 In days. case, the present appellant was a fugitive justice for 95 following the issuance of days 5, 1974; the complaint on it was April therefore neces only that sary trial commence within 270 or days plus days, 5, 1975. As April 20, 1975, trial commenced on January there was no Rule 1100 violation.
(4)
that the lower
Finally,
alleges
court erred
in
failing
his motion in
grant
arrest of
with
judgment
Paragraph (e)
4.
provided
of Sec. 1311 of the Crimes Code
in
cases,
pleas
guilty,
such
impose
cases of
the court should
sentence in
promul-
accordance with Rules of Criminal Procedure as
gated by
Supreme
Pennsylvania. Although
Court of
such rules
promulgated,
were
seq., they
later
see Pa.R.Crim.P.
et
had not
become effective at the time of trial in the instant case.
Although
5.
Rule 1100 now mandates
that all trials be commenced
days
filing
complaint,
day
within 180
of the
of the
the former 270
period
applicable
was
at the time of
trial. The record
complaint
April
shows that
in the instant case was filed on
Thus,
periods
exclusion,
1974.
absent
continuances or
tried
should have commenced on or before December
1974. The
petitioned
challenged
for the
extension on December
eventually
January
and trial
commenced on
within
period.
the extended
respect
a firearm without a
charge
carrying
license.6
argument
is that the Commonwealth failed to
*6
establish that
the firearm
Nickol concealed
as is required by
6106,
the
6,
trial,
n.
At
called
prosecution
§
Debra
supra.7
Busse Knorr, the driver of the
testi
get-away vehicle. She
fied that
no gun
possession
she saw
in the
of Nickol either at
the time
he left
vehicle to enter the
or at
supermarket
the time he
the automobile.
reentered
Other testimony
elicited at trial substantiates
did
use
possess
a firearm in the interim. The issue of
the gun
whether
which
used
have been concealed on his
appellant
might
when
person
he entered the supermarket
question
was a
for
the finder-of-fact. We
evidence in
instant
believe
case was sufficient
to a
give
permissible
rise
inference
that Nickol did conceal the weapon. See Commonwealth v.
163,
433
249
Pressley,
(1969);
Pa.
A.2d 345
Commonwealth v.
Horshaw,
76,
237 Pa.Super.
(1975).
The of sentence judgments are affirmed. J.,
ROBERTS, filed a dissenting in which opinion MAN- DERINO, J., joins. Justice,
ROBERTS,
dissenting.
Appellant
1975,
Kenneth Nickol was tried in January,
murder.
trial,
At the time of
18
1311
Pa.C.S.A. §
(Supp.1977)
that a
provided
could
a sentence
jury
impose
murder,
death for
degree
first
but
that a judge sitting
without a
could
jury
impose the same
only pursu-
sentence
ant to rules promulgated
this Court.
trial,
At the time of
Act,
6. Section
6,
6106 of the Uniform Firearms
Act of December
1972,
1,
amended,
No.
§
as
18 Pa.C.S.A.
provides
part:
in relevant
“(a)
person
carry
Offense defined. —No
firearm in
person,
place
vehicle or concealed on or
except
about his
in his
place
business,
abode or fixed
without a license therefor as
provided
subchapter.”
in this
prosecution
7. There is no claim that
failed
establish
absence of a license.
John Lowe of the Wilkes-Barre
force
gun permit
testified that no
was ever issued to Kenneth Nickol.
McNeil,
Compare
v.
(1975).
this Court had not promulgated
rules,
such
so that no judge
sitting without a
could
impose a sentence of death appellant.
chose
Appellant
to be tried by a judge sitting
without
because,
a jury
asserts,
he
he feared the potential
sentence of death
the exercise
accompanying
of his constitu-
tional right to a trial
by jury.
majority concludes that
appellant’s “waiver of the
to trial
by jury was not
I
coerced.”
dissent.
unconstitutionally
This case
the same issue
presents
as Commonwealth v.
Bhillips a/k/a Gergel, 475
Pa.
“When ... unwilling defendant is to admit his guilt and exercises his undoubted right put the Com- monwealth to its proof, there can be justification no holding as the waiver of the ‘voluntary’ trial by jury when that waiver was admittedly compelled aby unconstitutional patently scheme. sentencing The deci- sion of the reflects an majority insensitive regard for the basic principle that the waiver of a constitutional right must be and not the voluntary, result of impermissible coercion.”
Commonwealth v. Bhillips, supra, 475
Pa. at
MANDERINO, J., joins this dissenting opinion.