No. 699 April Term, 1976, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Criminal Division, at No. 327 January Term, 1975.
Patrick H. Mahady, Assistant District Attorney, Greensburg, for Commonwealth, appellant.
Dante G. Bertani, Public Defender, Greensburg, submitted a brief for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Watkins, President Judge, joins.
[ 250 Pa. Super. Page 67]
This is an appeal by the Commonwealth from a March 17, 1976, order of the court below, granting a petition to dismiss with prejudice various criminal charges against the appellee and discharging him from custody.*fn1 The lower court predicated
[ 250 Pa. Super. Page 68]
its order upon a finding that the appellee's right to a speedy trial as provided by Pa.R.Crim.P. 1100 was violated. For the following reasons, we affirm the order of the lower court.
On December 22, 1974, a criminal complaint was issued against the appellee, charging him with various offenses. On that same day, the appellee was arrested, arraigned before a district magistrate, and released on bond.*fn2 Under the precept of Pa.R.Crim.P. 1100(a)(2),*fn3 the Commonwealth had 180 days, or until June 20, 1975, from the date the criminal complaint was filed against the appellee to bring him to trial. On March 10, 1975, the case was called to trial, but the appellee failed to appear. A Pennsylvania State Police Officer, Kenneth O. Clugston, testified in the lower court that the appellee was unable to appear because he was incarcerated in North Carolina. The court below therefore ordered that a detainer be issued against the appellee and that all necessary steps be taken to secure his return to this Commonwealth. On October 7, 1975, the appellee filed a petition to dismiss the charges against him alleging that his right to speedy trial under Rule 1100 had been violated. The Commonwealth responded to the appellee's petition by stating that the appellee was unavailable for trial because he was ". . . confined at the Harnett Youth Center, Lillington, North Carolina." On March 17, 1976, when the case was next called for trial, the appellee appeared before the court below,*fn4 and arguments were heard on the appellee's
[ 250 Pa. Super. Page 69]
petition to dismiss. At this time, Officer Clugston related that he filed a detainer against the appellee with North Carolina correction authorities on March 10, 1975. The assistant district attorney, however, testified that extradition proceedings were not commenced against the appellee until November 21, 1975. Although the Commonwealth argued that the appellee could not be extradited in less than six months, the lower court concluded that no sufficient explanation was rendered as to why eight months elapsed before the appellee's extradition commenced. The charges against the appellee were therefore dismissed by the lower court. We affirm the action of the lower court.
It is now 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)] if the Commonwealth is to prevail.'" Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). In the instant case, the Commonwealth wishes us to exclude the entire period of delay between March 10, 1975, when the case was first called to trial, and January 20, 1976, when the appellee was presumably returned to this Commonwealth,*fn5 from the computation of the mandatory period on the basis that the appellee was incarcerated in North Carolina and therefore unavailable for trial in Pennsylvania during that period. See Pa.R.Crim.P. 1100(d)(1).*fn6 ...