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decided: October 6, 1977.


No. 690 October Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of October Sessions, 1974, Nos. 1463 and 1465.


John W. Packel, Assistant Public Defender, and Benjamin Lerner, Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.

Author: Cercone

[ 250 Pa. Super. Page 222]

Following a jury trial, appellant was found guilty of robbery and criminal conspiracy. Appellant appeals from his consecutive judgments of sentence fixing the term of imprisonment at not less than twelve and a half nor more than twenty-five years in a state correctional institution. Appellant contends, inter alia, that the judgments of sentence should be reversed and the charges against him dismissed because of the Commonwealth's noncompliance with Pa.R.Crim.P. 1100. For the reasons stated hereinafter, we agree.

The facts necessary for the resolution of the Rule 1100 issue are as follows: A written complaint was filed against appellant, Howard Williams, on September 27, 1974. According to the time limits for trial set forth in Pa.R.Crim.P. 1100(a)(2), appellant's trial should have commenced "no later than one hundred eighty days from the date on which the complaint is filed," that is on or before March 26, 1975. On November 14, 1974, the lower court ordered the hearing on appellant's pre-trial motion to suppress evidence to be reserved for time of trial. On March 20, 1975, six days before the running of Rule 1100, the lower court ordered the parties to proceed with the hearing on appellant's pre-trial motion. The hearing ended at 3:40 P.M. because appellant's counsel was scheduled for a post trial hearing before another judge. However, it is also apparent from the record that even if defense counsel had been available for the remainder of the court day, the suppression hearing could not have been completed because the Commonwealth presented seven additional witnesses when the hearing was resumed. Moreover, both the court and the prosecutor indicated that the following day, March 21, was inconvenient for them, and appellant's counsel noted his objection to a lengthy continuance. The hearing was continued to April 18, 1975. Due to the

[ 250 Pa. Super. Page 223]

    fact that defense counsel was unavailable on April 18, the case was continued again to May 29, 1975.*fn1 Once again the completion of the hearing on appellant's motion to suppress was continued, due to the unavailability of a prosecution witness. Finally on June 9, 1975 further testimony was taken. The hearing was completed on June 10, 1975 and the lower court denied appellant's motion on June 13, 1975. At the conclusion of the hearing on June 10, the district attorney and appellant's counsel agreed that appellant would waive Rule 1100 from the day that the testimony on the motion was concluded until two days after appellant's counsel received the notes of testimony from the stenographer.*fn2 The trial was then listed on "backup status" until August 5, 1975 at which time the case was continued to August 13, 1975 as no courtroom was available. On August 13, the case was continued once again and trial began on August 27, 1975. Appellant had filed his motion to dismiss the charges pursuant to Pa.R.Crim.P. 1100(f) on April 16, 1975, and his motion to dismiss was heard and denied on August 27, 1975. At no time did the Commonwealth petition the court for an extension of time under Pa.R.Crim.P. 1100(c).

Since the actual trial began on August 27, 1975, 334 days had passed between trial and the filing of the complaint. Appellant concedes that the forty-one day period from April 18, 1975 to May 29, 1975 was caused by the unavailability of appellant's counsel. Appellant further concedes that the period between June 10, 1975 and July 23, 1975 was specifically waived by appellant. Therefore, this forty-three day period when added to the earlier forty-one day period

[ 250 Pa. Super. Page 224]

    amounts to a total of eighty-four days that are excluded from the running of the Rule. Subtracting eighty-four days from the total period of 334 days, 250 days had expired between the filing of the complaint and actual trial.

The decisive question on this appeal is whether, as the Commonwealth contends, trial commenced on March 20, 1975, with the hearing on appellant's motion to suppress. Since we conclude that trial did not commence for the purposes of Rule 1100 on that date, ...

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