Appeal from Judgment of Sentence in the Court of Common of Delaware County, Pennsylvania, Criminal Div., as of Nos. 770, 771 & 774, May 1974.
Ernest T. Kardas, Assistant Public Defender, Media, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, Media, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion. Price, J., files a dissenting opinion.
[ 248 Pa. Super. Page 186]
This is an appeal from judgments of sentence imposed on convictions of robbery, theft by unlawful taking, and conspiracy. Appellant has raised a substantial issue regarding deprivation of his right to a speedy trial, as delineated in Pa.R.Cr.P. 1100. Since on the record before us we are unable to resolve the issue, we remand for further proceedings.
The charges against appellant were based on an incident at a car wash and gas station on April 1, 1974. A criminal complaint was filed against appellant on the same day, and he was immediately arrested, later being released on bail. On May 27, 1975, 421 days after the complaint was filed, appellant was tried. Before trial he filed a petition requesting that the charges be dismissed because the Commonwealth had failed to bring him to trial within 270 days as required by Rule 1100(a)(1). After a hearing, the lower court denied the petition on the ground that "any delay in going to trial has been caused by the defendant Clark or his attorney, and, therefore, the Court found that he had not been denied his right to a speedy trial." Opinion of the lower court at 4.
Appellant's trial was originally set for November 12, 1974, well within the 270 day period.*fn1 The prosecutor and appellant's counsel appeared in court that day but appellant did not. Appellant's absence was unexplained, and when the prosecutor suggested that appellant was a fugitive, the court agreed and declared him a fugitive. In fact, however, appellant was in jail in the same county, under charges unrelated to the car wash and gas station incident. Appellant had received notice of his November 12 trial date but had made no effort to inform his counsel, the prosecutor, or the warden regarding his required appearance in court for trial. Although there was some evidence that someone in the District Attorney's office knew that appellant had been
[ 248 Pa. Super. Page 187]
rearrested and was in jail,*fn2 evidently the prosecutor in charge of the present case did not.
The case was again listed for trial on March 31, 1975, but was not reached. It was listed again for April 1, but was not reached. On April 4 the court granted a continuance because appellant's counsel was not present. On May 15 another continuance was granted because appellant's counsel was not prepared. Appellant's petition under Rule 1100(f) was heard and denied on May 27, and trial commenced the next day. At no time did the prosecution file a motion to extend the time for commencement of trial. Rule 1100(c).
It is true that even in the absence of an extension of time under Rule 1100(c), the period within which trial must be commenced will be extended by such period as may result from (1) the unavailability of the defendant or his attorney, or (2) any continuance in excess of thirty days granted at the request of the defendant or his attorney. Rule 1100(d). However, in this case, facts crucial to a determination of the proper period were ignored by the court below.
As has been mentioned, on November 12, 1974, the lower court declared appellant a "fugitive." Clearly, a fugitive is "unavailable" as that word is used in Rule 1100(d)(1).*fn3 But was appellant a fugitive? Some law enforcement official knew that appellant was in jail; probably someone in the District Attorney's office also knew it. However, those who knew that did not also know that appellant was due for trial on the instant charges on November 12; those who knew about the trial did not know of appellant's subsequent ...