Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1973, No. 962, and Nos. 4372, 4373, and 4374 of 1973, in case of Commonwealth of Pennsylvania v. Donald Lakey Reese.
Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 237 Pa. Super. Page 329]
On December 2, 1973, at approximately 1:30 P.M., appellant was in the exercise yard of Montgomery County Prison, where he was temporarily confined awaiting disposition of charges unrelated to the instant case. At that time appellant accosted a fellow inmate, stabbing him 9 or 10 times in the chest with a sharp instrument. Appellant was indicted, tried by a jury, and convicted of simple and aggravated assault, assault by a prisoner and attempted murder. Post-verdict motions were denied and appellant was sentenced to an aggregate of 8 to 20 years imprisonment. Appellant now appeals to this court.
Initially appellant contends that the lower court erred in failing to grant his motion to dismiss on the basis that appellant was denied his right to a speedy trial, as required by Pa. R. Crim. P., Rule 1100. Rule 1100(a)(1) provides that cases in which complaints were filed between June 30, 1973, and July 1, 1974, must be brought to trial within 270 days. In this case the complaint was filed on December 3, 1973, and appellant was brought to trial on January 14, 1975, 408 days later. The 270 day period is not, however, inflexible, in that extensions are explicitly provided for in the Rule itself. Rule 1100(d)(1) provides that "[i]n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from . . . the unavailability of the defendant or his attorney." Therefore, in the instant case we must determine whether the unavailability of the defendant or his attorney accounted for the 138 day delay beyond the 270 day period provided for bringing appellant to trial.
[ 237 Pa. Super. Page 330]
The first such delay to be considered is a 118 day period between March 5, 1974, and July 2, 1974, during which time proceedings were conducted to determine whether appellant was competent to stand trial. That issue was raised when Dr. Robert C. Bowman, the attending psychiatrist at Western State Penitentiary, petitioned the court pursuant to Section 408(b) of Mental Health and Mental Retardation Act of 1966*fn1 to examine and evaluate appellant. As a result, the Commonwealth petitioned the court to appoint a sanity commission and, on March 5, 1974, such a commission was appointed. On July 2, 1974, the commission determined appellant was competent to stand trial.
It is obvious, for several reasons, that this 118 day period must be excluded pursuant to Rule 1100(d)(1) from determination of the period for commencement of trial. The law is clear that conviction of a legally incompetent accused violates due process. See Pate v. Robinson, 383 U.S. 375 (1966); Bishop v. United States, 350 U.S. 961 (1956); Commonwealth v. Kennedy, 451 Pa. 483 (1973); and Commonwealth v. Smith, 227 Pa. Superior Ct. 355 (1974). Further, one who is legally incompetent cannot be indicted. See Commonwealth v. Kohr, 228 Pa. Superior Ct. 195, 200-201 (1974). Therefore, until obtaining the result of the sanity commission, there was no choice but to delay both trial and indictment. This delay must be attributed to the unavailability of appellant and, therefore, excluded from the period for commencement of trial pursuant to Rule 1100(d)(1). See Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258, 264 (1974). This conclusion is in accord with the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, Section 3.2(a). It should be further noted that appellant's attorney not only
[ 237 Pa. Super. Page 331]
failed to object to the appointment of the sanity commission, but he in fact joined in the Commonwealth's petition for the appointment of such commission. After such action he cannot now reasonably object to the delay caused by the commission's proceedings.
The second delay to be considered is a 51 day delay which the lower court held to be attributable to the unavailability of defendant's counsel. Appellant was scheduled to go to trial on November 24, 1974. However, on November 15, 1974, it was realized that appellant's counsel was already scheduled to try a complex criminal case during the last week of November. Therefore, the court, on its own motion, rescheduled appellant's trial for January 14, 1975. Appellant did not object to this rescheduling until January 3, 1975, after the 270 day period and 118 day period had run. At that time appellant made a motion to dismiss on the ground that, as it turned out, he was available the last week in November; and, therefore, the 51 day delay from November 15, 1974, to January 14, 1975, could not be attributed to his unavailability. The question which comes to mind is why did appellant's counsel wait until January 3, 1975, to inform the court that he was available the last week in November. If he was, in fact, available the last week in November, and if he did, in fact, want to go to trial on November 24, 1974, he could have simply made the court aware of these facts on November 15, 1974, when the rescheduling occurred. His failure to do so precludes his objection to the 51 day delay he subsequently made on ...