decided: October 6, 1977.
COMMONWEALTH OF PENNSYLVANIA
JOHN ALBERT LENNOX, APPELLANT
No. 1938 October Term, 1975, Appeal from the Judgment of Sentence imposed July 25, 1975, by the Court of Common Pleas of Montgomery County, Criminal, at No. 1024 of January Term, 1975, C.A. Nos. 1024, 1024. 1 of 1975.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Milton O. Moss, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Cercone and Spaeth, JJ., join.
[ 250 Pa. Super. Page 82]
On January 23, 1975,*fn1 a criminal complaint was issued against the appellant charging him with assault,*fn2 indecent assault,*fn3 recklessly endangering another person,*fn4 and terroristic threats.*fn5 On this same date, a warrant was issued for the appellant's arrest. The appellant, however, remained at large until February 14, 1975, when he was arrested on the warrant. A preliminary hearing was held on February 28, 1975, and the appellant was indicted on May 14, 1975. On July 25, 1975, when he was called to trial, the appellant, pursuant to a plea bargain agreement with the prosecution, pleaded guilty to both assault charges. The remaining indictments were then dismissed, and the appellant was sentenced in accordance with the terms of the agreement.
[ 250 Pa. Super. Page 83]
The appellant now contends that his plea was not voluntarily or intelligently made because he was not informed by counsel that he was entitled to be discharged since he was not tried within 180 days, as required by Pa.R.Crim.P. 1100(a)(2).*fn6 See Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976). We find this contention to be without merit*fn7 and therefore affirm the judgment of sentence.
Although the record clearly shows that 183 days passed from the date on which the complaint was issued until the date the guilty plea was accepted, this does not, by itself, establish that the appellant's right to a speedy trial under Rule 1100 was violated. Section (d)(1) of Rule 1100 provides that periods of delay may be excluded from the computation of the prescribed period if such periods of delay are caused by: "the unavailability of the defendant or his attorney." See Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). All periods of delay beyond the mandatory period "'. . . must either be 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)], if the Commonwealth is to prevail.'"
[ 250 Pa. Super. Page 84]
v. McCusker, 245 Pa. Super. 402, 403, 369 A.2d 465, 466 (1976), "[i]n Commonwealth v. Roberts, [237 Pa. Super. 336, 352 A.2d 140 (1975)], this Court mandated strict compliance with the requirement that the appellant file a petition to withdraw. For appeals filed prior to the filing date of Roberts, December 1, 1975, this Court has generally remanded cases involving challenges to guilty pleas to permit appellants an opportunity to file a petition to withdraw." Because the instant appeal was filed before our decision in Roberts, I believe that the proper procedure is to remand the case to the lower court.
I dissent for a second reason: the Majority holds that appellant's plea was voluntary because his Rule 1100 claim has no arguable merit. The Court is able to conclude that appellant was tried expeditiously because ". . . the record amply demonstrates that the appellant was at large from January 23 until February 14, and was therefore unavailable for trial under Rule 1100(d)(1) for a period of twenty-two days." (At 84). I agree that were appellant "unavailable" between the issuance of the complaint and his arrest, that delay is automatically excluded from the relevant period. Rule 1100(d)(1); Commonwealth v. Flores, 247 Pa. Super. 140, 371 A.2d 1366 (1977). Before time can be excluded, however, the Commonwealth must show that it exercised due diligence in attempting to effectuate the defendant's arrest. See Comment to Rule 1100: "For purposes of subparagraph (d)(1), . . . the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence, . . ." See also, Commonwealth v. Flores, supra. To permit exclusion of that time without a showing of due diligence would seriously erode the purposes of the rule. Although the record does indicate delay between the complaint and the arrest, there is no evidence that the Commonwealth exercised due diligence in attempting to locate appellant. Thus, without amplification of the record, we cannot
[ 250 Pa. Super. Page 86]
summarily dismiss appellant's contention. Cf. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).
Therefore, I dissent and would remand the instant case.