Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 1480 of 1974, in case of Commonwealth of Pennsylvania v. Ray Eugene Lewis.
Edward F. Browne, Jr., and William C. Haynes, Assistant Public Defenders, for appellant.
Michael H. Ranck, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Watkins, P. J., dissents.
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On February 23, 1974, a written complaint was filed against appellant charging him with a violation of Section
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of the Pennsylvania Crimes Code, theft by unlawful taking.*fn1 Under Pa. R. Crim. P. Rule 1100, the Commonwealth was bound to either commence trial on this charge*fn2 or petition for an order extending the time for commencement of trial*fn3 by November 20, 1974; i.e., within 270 days after the filing of the complaint. The Commonwealth, however, during the passage of this time period took no action whatsoever. Subsequently on November 25, 1974, it filed a petition requesting an extension of time for commencement of trial. The appellant then filed an application to dismiss the charges pursuant to the violation of Rule 1100. The lower court denied appellant's request for dismissal and granted the Commonwealth's request for extension of time. Appellant was tried and convicted on May 21, 1975, and submitted post-verdict motions as to this issue. Post-verdict motions having been denied, appellant now appeals to his court again raising the violation of Rule 1100.
The Commonwealth contends that the period for the commencement of trial and, therefore, the period in which it could petition for an extension of time, was increased pursuant to Rule 1100(d)*fn4 due to the unavailability of
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appellant and his attorney. In support of this contention the Commonwealth sets forth two periods of unavailability, either one of which extends the period of commencement of trial well beyond November 25, 1974. The first period concerns the unavailability of appellant's attorney. A preliminary hearing scheduled for July 22, 1974, was continued until August 19, 1974, at the request of appellant's attorney due to his being out of town. But, because the continuance was not in excess of 30 days, it is not excluded in determining the period for commencement of trial. See Rule 1100(d)(2).*fn5 The second period concerns the unavailability of the appellant, himself. The Commonwealth claims that an 81 day period of time between the failure of appellant to appear for trial on March 21, 1974, on other charges, and June 10, 1974, when he was apprehended on a bench warrant relating to those other charges, should be excluded from the time period for commencement of trial on the instant charge. While it is true that appellant was unavailable during the 81 day period his unavailability in no way caused delay in the proceedings related to this case. It is only those absences of the defendant or his attorney which caused a delay in the proceedings of the case in question which can be excluded pursuant to Rule 1100(d). See Commonwealth v. Cutillo, 235 Pa. Superior Ct. 131, 135, n.3, 339 A.2d 123, 125, n. 3 (1975).
Therefore, since the Commonwealth neither commenced trial nor petitioned for an order extending the time for commencement of trial within 270 days, and since the ...