decided: June 29, 1977.
COMMONWEALTH OF PENNSYLVANIA
THOMAS DEVOY, APPELLANT
Appeal from the Judgment of Sentence imposed December 16, 1975, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1188/1191, July Term, 1975.
Thomas J. McCormack, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, submitted a brief, for appellee.
Watkins, President Judge, and Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, dissents. Jacobs, J., did not participate in the consideration of this case.
[ 248 Pa. Super. Page 354]
On February 2, 1975, a complaint was filed against the appellant charging him with various criminal offenses. Appellant's trial on these charges commenced on September 9, 1975.*fn1 The appellant now claims that his right to a speedy trial was denied in that he had not been brought to trial within 180 days from the date the criminal complaint was filed against him, as required by Pa.R.Crim.P. 1100(a)(2).*fn2 After careful examination of the record, we are constrained to agree with this contention.
The record shows that the Commonwealth continued the instant case from February 10, 1975, until March 14, 1975, from March 14, 1975, until June 20, 1975, and from June 20, 1975, until July 11, 1975, because the complainant was hospitalized and unable to testify. On September 9, 1975,
[ 248 Pa. Super. Page 355]
the appellant filed a petition to dismiss the charges against him, asserting non-compliance with Rule 1100(a)(2). The appellant's petition to dismiss was denied on October 6, 1975.
In denying the appellant's petition to dismiss, the lower court excluded from its computation of the mandatory period the 130 days between February 10, 1975, and June 20, 1975. The lower court was clearly wrong in so doing. Pa.R.Crim.P. 1100(d) provides that periods of delay may be excluded from the computation of the prescribed time only if such periods of delay are caused by: "(1) the unavailability of the defendant or his attorney; (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded." See Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). All periods of delay beyond the mandatory period "'. . . 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)],*fn3 if the Commonwealth is to prevail.'" Commonwealth v. Shelton, supra, 469 Pa. at 14, 364 A.2d at 697, quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). Rule 1100(d) is clearly inapplicable to the instant situation. Periods of delay due to the unavailability of a hospitalized Commonwealth witness may not be excluded from the computation of the prescribed period under the authority of Rule 1100(d). Moreover, the Commonwealth did not seek an extension of time for trial pursuant to Rule 1100(c). Because the mandatory period for trial had expired by September 9, 1975,*fn4 when the appellant filed his petition to dismiss, we order the appellant discharged.
[ 248 Pa. Super. Page 356]
The judgment of sentence is reversed, and the charges against the appellant are dismissed with prejudice.