Appeals from orders and judgment of sentence of Court of Common Pleas of Washington County, No. 582 of 1974, in case of Commonwealth of Pennsylvania v. Thomas Lee Zack.
Gordon F. Harrington, with him Greenlee, Richman, Derrico & Posa, for appellant.
William A. Mitchell, Assistant District Attorney, and Jess D. Costa, District Attorney, submitted a brief for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 238 Pa. Super. Page 211]
Appellant contends that his right to speedy trial under Rule 1100, Pa.R.Crim.P., was violated*fn1 and that the verdict was against the weight of the evidence.*fn2
On July 22, 1974, appellant was charged by criminal complaint with involuntary deviate sexual intercourse.*fn3 A Washington County grand jury indicted appellant on September 6, 1974. On October 30, 1974, appellant's counsel was granted a continuance of the case until the next term of court, and trial was rescheduled for December 9. From November 19, until December 12, 1974, however, appellant was unavailable for trial because he was in
[ 238 Pa. Super. Page 212]
Fayette County awaiting trial on an unrelated charge. On February 19, 1975, appellant filed an application to dismiss the instant indictment with prejudice on the ground that the Commonwealth had failed to comply with Rule 1100.
The Commonwealth contends that a total of thirty-five days must be excluded from the two hundred thirteen days which elapsed between the filing of the criminal complaint on July 22, 1974 and defendant's Rule 1100(f) application.*fn4 It argues that ten of the forty days may be charged against the defendant because of the continuance,*fn5 that twenty-three days must be excluded due to the appellant's unavailability while he was awaiting trial in Fayette County,*fn6 and that February 19, and February 20, 1975, ought to be excluded because the appellant was on trial under another indictment.*fn7 Thus, the Commonwealth argues, only one hundred seventy-eight days chargeable to the Commonwealth had elapsed.
The Commonwealth's argument is legally, but not factually, correct. The fallacy in this reasoning is that
[ 238 Pa. Super. Page 213]
the period of time excluded by the Rule because of the continuance and the period of time excluded due to the appellant's unavailability overlap; the Commonwealth seeks to count the same days twice. On October 30, 1974, defense counsel was granted a continuance until December 9. Thus, the period from November 30 to December 9 would ordinarily be excluded from computation of the period within which the Commonwealth must bring the defendant to trial. But, those same days are included in the period appellant was awaiting trial ...