Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, Imposed on Bills of Indictment Nos. 86, 87, 89, 95, 97/99, 101, 103 of March, 1974. No. 985 October Term, 1975.
Donald G. Joel, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 247 Pa. Super. Page 134]
This appeal arises from appellant's conviction by a jury of robbery, possession of an instrument of crime, aggravated assault and conspiracy. On February 1, 1974, a robbery and shooting occurred at the Beehive Bar in Philadelphia, Pennsylvania. The back door was locked while six patrons were robbed at gunpoint then forced into the restrooms at the rear of the bar. One of the policemen responding to the call triggered by a silent alarm was shot and wounded as he entered the front door. After exchanging shots with the police, Cornelius Miller, appellant herein, and Roosevelt McDaniels were apprehended at the scene by the patrons and arrested and taken into custody by the police. Outside the bar, appellant scuffled with the police and, before he was subdued, received slight injuries requiring medical attention. He was taken to a hospital where his clothing and
[ 247 Pa. Super. Page 135]
money were seized. A short time later he was removed to a place of detention where he gave a statement to the police. Appellant's post-trial motions were denied, and he now claims errors by the court below require either dismissal of the charges and his discharge, or a new trial.
Appellant first claims he was denied his right to a speedy trial since his trial did not begin within 270 days of the filing of the criminal complaint as required by Rule 1100 of the Pennsylvania Rules of Criminal Procedure, 19 P.S., Appendix (1977). The complaint was filed on February 1, 1974, and the last day available for trial was October 29, 1974. The trial began on November 4, 1974 with the suppression hearing which, by order of court, was to be held at trial. See Pa.R.Crim.P. 323(e). Since the Commonwealth did not petition for an extension of time, if four days could not have been excluded from the running of the period, appellant's trial would have commenced beyond the 270 days permitted.
In pertinent part Rule 1100 provides that:
"(d) In 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 defendant or his attorney;"
From the record it appears that four days, from Monday, October 28, 1974 through Thursday, October 31, 1974, were properly excluded due to the unavailability of appellant and his counsel. After many delays trial in this case had been set for Monday, October 28, 1974, but was continued until Tuesday, October 29, 1974 at the request of appellant's attorney who was unavailable, having been engaged in an unrelated legal matter outside the city. From Tuesday, October 29 through Thursday, October 31, 1974 appellant and his counsel were engaged in the hearing of a motion to suppress in a different case in which appellant was a defendant and ...