Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Montgomery County, at No. 2978 July Term, 1974, C.A. Nos. 2978, 2978.1 of 1974. No. 841 October Term, 1976.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, Ross Weiss, First Assistant District Attorney, and William T. Nicholas, District Attorney, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Watkins, President Judge, and Cercone, J., join.
[ 247 Pa. Super. Page 304]
The appellant contends, inter alia, that his right to a speedy trial was violated since he was not brought to trial within 180 days from the filing of the criminal complaint as required by Pa.R.Crim.P. 1100(a)(1). We agree with this contention, reverse the judgment of sentence, and order the appellant discharged.
The criminal complaint involved herein was filed on August 6, 1974. The case was first listed for trial on January 15, 1975, within the 180 days prescribed by the applicable rule, but appellant did not appear. The dissent, citing Pa.R.Crim.P. 1100(b) (p. 311), finds that trial commenced on that date and that all time elapsed thereafter is immaterial under the Rule. We refute this finding. The comment to Rule 1100 clearly states the intention of the Rule in respect to the commencement of trial:
"A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire . . . or to some other such first step in the trial."
We do accept, however, that the evidence therefore establishes the unavailability of appellant as of January 15, 1975, and as such, commences a period of unavailability pursuant to Pa.R.Crim.P. 1100(d)(1).
The crucial question then becomes how many days are thus excludable. This in turn depends upon a record determination of the availability of appellant subsequent to the trial's first listing on January 15, 1975.
Appellant's Motion to Dismiss, filed September 3, 1975, and hence properly and timely filed pursuant to Pa.R.Crim.P.
[ 247 Pa. Super. Page 3051100]
(f) alleges that Montgomery County, through its Sheriff's Office, filed a detainer against appellant at the Holmesburg Prison in Philadelphia on February 5, 1975. Although it is true appellant was incarcerated under one of the various aliases used by him, it is also apparent that at least the Sheriff of Montgomery County on that date had located the appellant. The dissent's discussion of the time period from February 5, 1975 ...