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decided: December 2, 1977.


No. 1289 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, at Nos. 119, 120 March Term, 1974.


Richard L. Raymond, Media, for appellant.

John G. Siegle, Assistant District Attorney, Media, with him Ralph B. D'Iorio, Assistant District Attorney, Media, for Commonwealth, appellee.

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

Author: Price

[ 251 Pa. Super. Page 191]

Appellant contends that he was denied his right to a speedy trial under Pa.R.Crim.P. 1100 since he was not brought to trial within 270 days from the date on which the criminal complaint was lodged against him.*fn1 We agree with this contention.

[ 251 Pa. Super. Page 192]

Pa.R.Crim.P. 1100(a)(1) provides that: "Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974, shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed." In the instant case, a written complaint was filed against appellant on October 29, 1973. The Commonwealth thus had until July 26, 1974, to bring appellant to trial. Trial, however, did not commence until April 8, 1975, 526 days after the filing of the complaint. On January 9, 1975, appellant, citing Pa.R.Crim.P. 1100(f),*fn2 petitioned the court below to dismiss the charges against him. On February 6, 1975, the court below dismissed appellant's petition, but ordered that trial commence within thirty days. Trial was then scheduled to commence on February 27, 1975. On February 27, 1975, however, the lower court continued the case until April 1 because no courtrooms were available.*fn3 The docket shows that on March 21, 1975, appellant again petitioned the court below to dismiss the charges against him under Rule 1100(f). On that same day, a rule to show cause issued, and a hearing was scheduled for April 1, 1975. No hearing was conducted,*fn4 however, and on April 8, 1975, prior to trial, appellant orally requested the trial judge to consider his petition to dismiss.*fn5 The trial judge refused appellant's petition on the basis that

[ 251 Pa. Super. Page 193]

    appellant's earlier petition had already been dismissed. Trial commenced on April 8, 1975, resulting in appellant's conviction of several offenses. Various post-verdict motions were denied by the court below. This appeal followed.

The Commonwealth first contends that appellant failed to preserve his Rule 1100 claim for appellate review by not raising it in written post-verdict motions. The record belies this contention. The docket shows that on April 15, 1975, appellant filed a motion to dismiss under Rule 1100 along with a motion for a new trial and in arrest of judgment. The lower court was thus timely presented with an opportunity to review appellant's claim. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1976).*fn6 We find that appellant's claim under Rule 1100 was properly preserved.

The Commonwealth, perhaps anticipating our determination as to its assertion of waiver, further contends that appellant's right to a Rule 1100 speedy trial was never violated because of certain periods of delay which must be excluded from the computation of the mandatory period under Rule 1100(d).*fn7 The record shows that the preliminary hearing was delayed from November 15, 1973, until December 20, 1973, at appellant's request. Although the printed

[ 251 Pa. Super. Page 194]

    record before us does not reveal the reason for this thirty-five day delay, and therefore we are unable to determine whether the entire period should be excluded under Rule 1100(d)(1) or whether only five days should be excluded under Rule 1100(d)(2), we will assume, arguendo, that the entire period should be excluded. The case was next continued from June 4, 1974, until September 30, 1974, due to appellant's request that he be considered for Accelerated Rehabilitation Disposition. Under Rule 1100(d)(2), eighty-eight days of this 118 day period must be excluded. On October 22, 1974, the case was continued until November 20, 1974, because appellant's attorney was unavailable. Appellant waived his rights under Rule 1100 for the length of this continuance. We must therefore exclude the entire twenty-nine day period. As previously stated, the first petition to dismiss was filed on January 9, 1975, 437 days after the filing of the complaint. Subtracting the total period of delay attributable to appellant, 152 days, from the 437 day period, we find that 285 days had expired when appellant filed his petition to dismiss. The lower court therefore erred by refusing appellant's petition.*fn8

Judgment of sentence is reversed and appellant is discharged.

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