Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on No. 1045, July Sessions, 1974. No. 153 October Term, 1976.
Judith W. Savitz, Assistant Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., filed a dissenting opinion in which Watkins, President Judge, and Jacobs, J., join.
[ 247 Pa. Super. Page 75]
Appellant contends that he should be discharged because he was not brought to trial within 270 days as mandated by Rule 1100, Pa.R.Crim.P., 19 P.S. Appendix.
Appellant was arrested in connection with a June 26, 1974 rape that took place on North 22nd Street in Philadelphia. The magistrate issued the criminal complaint on June 27, 1974. Thus, the Commonwealth had 270 days in which to bring appellant to trial. Rule 1100(a). After numerous listings, the case had still not come to trial on May 21, 1975, when the lower court heard and denied appellant's petition to dismiss filed pursuant to Rule 1100(f). Trial commenced on the following day and lasted until May 27, when a jury
[ 247 Pa. Super. Page 76]
found appellant guilty of rape.*fn1 On September 24, 1975, the lower court denied appellant's post-trial motions and sentenced appellant to a term of imprisonment of 4 to 15 years. This appeal followed.
Appellant's trial commenced 329 days after the filing of the criminal complaint. The sole issue is whether at least 59 days were properly excluded from the computation of the period in which the Commonwealth was required to bring the appellant to trial. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). The Commonwealth argues, however, that ". . . it is clear that the allowable two hundred and seventy (270) days under Rule 1100 was exceeded because of defense created delays. First, the 32 day delay from August 23rd to September 24th must be charged against defendant in view of the provision in Rule 1100(d)(1) excluding the time of defense counsel's unavailability. The 38 day delay from September 19th to November 1st must also be counted against defendant as it was a delay at the request of defense counsel. Rule 1100(d)(2). For the same reason, the delay from February 6th to March 6th, 28 days, must also be counted against the defense. Also to be computed against the defendant is the period of time from April 28 to May 19, 1975, a total of twenty-one (21) days, which was caused by defense counsel's request for a continuance.
"Thus delays attributable directly to the defense amounted to a total of one hundred and nineteen (119) days. Even subtracting the thirty (30) days of continuance allowable to the defense under Rule 1100(d)(2), a total of eighty-nine (89) days must be attributed to defense counsel's delay." Based on the Commonwealth's view of the case, appellant was tried within the time period.
The Dissent makes a somewhat different calculation: "On August 23, 1974, the case was called for trial but was continued due to the vacation period of a witness; no exclusion is ...