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decided: February 18, 1977.


Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Pennsylvania, at No. CC7505568A. No. 806 April Term, 1976.


Charles W. Johns, Assistant District Attorney, Pittsburgh, with him Robert L. Eberhardt, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for appellant.

B. Rubb, with him John J. Dean, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 246 Pa. Super. Page 302]

This is an appeal by the Commonwealth from an order of the court below, dated April 19, 1976, granting a petition to dismiss with prejudice various criminal charges against the appellee and discharging him from custody.*fn1 The court below predicated its order upon a finding that the appellee's right to a speedy trial as provided by Rule 1100 of the Pennsylvania Rules of Criminal Procedure had been violated. For the reasons stated herein, we reverse the order of the lower court, reinstate the indictment against the appellee, and remand the case for trial within one hundred and twenty (120) days.

On June 27, 1975, a complaint was filed against the appellee charging him with robbery,*fn2 involuntary deviate sexual intercourse,*fn3 and assault.*fn4 Subsequent efforts by the police to locate the appellee proved unsuccessful. On July 1, 1975, however, a police investigator received a telephone call from the appellee,*fn5 who wished to know

[ 246 Pa. Super. Page 303]

    why a warrant had been issued for his arrest. After being informed of the charges against him, the appellee informed the investigator that he would surrender to the police within twenty-four hours. After the appellee failed to appear, the police diligently continued their efforts to locate him. On November 14, 1975, the police learned that the appellee was in custody in South Carolina. The District Attorney's Office of Allegheny County promptly notified the proper authorities in South Carolina that charges were pending against the appellee and that extradition proceedings would commence against him unless waived by him. On November 21, 1975, the District Attorney's Office received written notification by the South Carolina authorities that the appellee had refused to waive extradition. On December 23, 1975, the South Carolina authorities notified the District Attorney's Office that the appellee had decided to waive extradition.*fn6 On December 29, 1975, the court below ordered the Allegheny County Sheriff to proceed to South Carolina in order to return the appellee to Allegheny County. On December 31, 1975, the appellee was imprisoned in Allegheny County.

On March 9, 1976, the court below granted the Commonwealth an extension of time for commencement of trial until April 17, 1976. On April 15, 1976, the court below conducted a hearing to decide the appellee's petition to dismiss the charges. The lower court concluded this hearing on April 19, 1976, when it granted the appellee's petition to dismiss. Apparently, the lower court concluded that the Commonwealth was required by Rule 1100 to file an application for an extension of time even though the delay in the present case was caused solely by the unavailability of the appellee. (see NT 18,

[ 246 Pa. Super. Page 304]

April 19, 1976)*fn7 On November 30, 1976, the lower court filed a memorandum before this court stating that it now believes the order of March 9, 1975, to be improper.

Section (a)(2) of Rule 1100 mandates that "[t]rial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." As we have previously stated: "The rigidity of this rule, however, is tempered by Rule 1100(d)(1) which 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: (1) the unavailability of the defendant or his attorney.'" Commonwealth v. Adams, 237 Pa. Super. 452, 456, 352 A.2d 97, 99 (1975). The 180th day in the instant case was December 24, 1975. On March 9, 1976, when the lower court granted the appellee's petition to dismiss the charges, the mandatory period in which to commence trial had already expired.*fn8 Thus, the entire period of delay beyond the 180th day:

[ 246 Pa. Super. Page 305]

"'. . . must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.'" Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976).

Here, the record shows that the 179 day period of delay from June 27, 1975, when the complaint was filed, until December 23, 1975, when extradition was waived, was caused solely by the unavailability of the appellee. We must therefore exclude this period of time from the computation of the prescribed time. Trial was ready to commence on April 19, 1976,*fn9 or 297 days after the complaint was filed against the appellee. Subtracting 179 days from 297 days reveals that a period of 118 days, or less than the allowable period of 180 days, had expired.

The order of the lower court is reversed and the case is remanded to the court below for trial.

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