Appeal from the Order dated August 18, 1975 by Judge Edwin H. Satterthwaite of the Court of Common Pleas, Criminal Division, Bucks County at No. 1680 of 1975. No. 92 October Term, 1976.
Stephen B. Harris, 1st Asst. Dist. Atty., Doylestown, for appellant.
Renninger, Spear & Kupits, Robert J. Kupits, Doylestown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents.
[ 242 Pa. Super. Page 220]
This case comes to us on an appeal taken by the Commonwealth from an order dismissing with prejudice, pursuant to Pa.R.Crim.P. 1100, the charges against Rory McCafferty.
Rule 1100 provides, in pertinent part, that trial in a court case in which a written complaint is filed against the defendant between June 30, 1973 and July 1, 1974 shall commence no later than 270 days from the date the complaint is filed. Any period of delay resulting from the unavailability of the defendant is excluded. The period is subject to extension upon a showing by the Commonwealth that trial cannot commence within the prescribed time despite due diligence.
The complaint in the instant case, charging appellee with robbery and theft, was filed on August 21, 1973. Shortly thereafter appellee was incarcerated in the Federal Penitentiary at Oxford, Wisconsin. His sentence expires August 16, 1977. In January of 1974 the prosecuting police officer lodged a detainer with the Federal authorities. On November 1, 1974, appellee filed an application for dismissal of the charges with prejudice, the remedy provided by the Rule.
[ 242 Pa. Super. Page 221]
Assuming arguendo that appellee could be considered unavailable until the date the detainer was lodged (the record does not show when the prosecuting officer became aware of his whereabouts) and that the detainer was lodged January 31, 1974 (the record only advises us as to the month), 273 days elapsed prior to the filing of the application for dismissal. The Commonwealth never applied for an extension of the time for commencement of trial. Accordingly, the court below granted the application.
The Commonwealth argues strenuously that the defendant should be considered unavailable during the period of his incarceration, and that Rule 1100 is in any event inapplicable to defendants incarcerated in another jurisdiction.
Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972), disposes of both contentions. With respect to a Commonwealth contention that the delay in that case was necessitated by the unavailability of the defendant, the court said:
"The record is clear that the Commonwealth made no effort to bring appellee to trial for nearly six years after the institution of criminal proceedings, yet no legitimate excuse is offered for his inaction. Commonwealth authorities made no attempt to extradite appellant even though they knew he was incarcerated in South Carolina. Having failed to pursue this procedure, the Commonwealth cannot now offer the fact of ...