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decided: October 6, 1977.


No. 491 October Term, 1976, Appeal from the Judgment of Sentence, imposed on November 12, 1975, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 24/27, February Term, 1975.


John W. Packel, Assistant Public Defender, and Benjamin Lerner, 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. Watkins, President Judge, dissents.

Author: Price

[ 250 Pa. Super. Page 101]

At approximately 10:45 p. m. on November 6, 1974, a robbery occurred at the Melody Bar in Philadelphia. Several minutes later, the appellant was arrested while inside the bar, and a complaint, charging him with robbery, aggravated assault, and other related offenses, was filed.*fn1 Trial began on July 7, 1975, or 243 days after the filing of the complaint,*fn2 and the appellant was subsequently convicted of various offenses by a jury. Post-verdict motions were denied and sentences were imposed. The appellant now questions the propriety of his convictions, raising several allegations of error. For the reasons stated herein, we reverse the judgments of sentence and remand the case to the lower court for a new trial.

[ 250 Pa. Super. Page 102]

The appellant's first assignment of error is that the lower court improperly denied his petition to dismiss the charges against him for violation of his Pa.R.Crim.P. 1100 right to a speedy trial. Pa.R.Crim.P. 1100(a)(2) mandates that: "Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed." In the instant case, the mandatory period expired on May 5, 1975. On June 19, 1975, forty-five days after the expiration of the mandatory period, the lower court denied the appellant's application to dismiss the charges, ruling that the mandatory period would not expire until June 30, 1975, on the basis of periods of delay excludable under Pa.R.Crim.P. 1100(d)*fn3 from the computation of the mandatory period. The record amply demonstrates the propriety of the lower court's holding.

It has become axiomatic that 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)*fn4] if the Commonwealth is to prevail.'" Commonwealth v. Shelton, 469 Pa. 8, 13, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976). The record shows that the case was continued from November 12, 1974, until December 17, 1974, because the appellant's

[ 250 Pa. Super. Page 103]

    counsel was unavailable for trial. This entire period of delay, totaling thirty-five days, is excludable under Pa.R.Crim.P. 1100(d)(1) from the computation of the period. Commonwealth v. Reese, 237 Pa. Super. 326, 352 A.2d 143 (1975); see also Commonwealth v. Shelton, supra.*fn5 The case was further delayed from December 17, 1974, until December 24, 1974, because the appellant failed to appear for trial. The lower court excluded this period of time on the basis of Pa.R.Crim.P. 1100(d)(1).*fn6 The appellant, however, avers that he was not unavailable for trial because he was at that time incarcerated in the Philadelphia County Prison. If the appellant's allegation is true, and we cannot determine from the record whether it is, then it is possible that he could not properly be classified as unavailable. See Commonwealth v. Woodson, 248 Pa. Super. 545, 375 A.2d 375 (1977). We need not, however, inquire further into the validity of the appellant's averment since neither the exclusion nor the inclusion of this seven day period will affect our determination of the appellant's Rule 1100 claim. The record shows that the case was again continued on April 10, 1975, in order for the appellant to retain private counsel.*fn7 Most importantly, however, the record also reveals that the appellant agreed at this time to waive*fn8 his rights under Rule 1100 until the case was next listed for trial, which was May 15, 1975. There is no

[ 250 Pa. Super. Page 104]

    doubt that an accused may waive his right to speedy trial under Rule 1100. Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976). Thus, the thirty-five day period between April 10 and May 15 is excludable from the computation of the period. Without further investigation, the record demonstrates that at least seventy days must be excluded from the computation of the period. The lower court was thus ...

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