Thomas J. McGrath, Philadelphia, with him George Gershenfeld, Philadelphia, for appellant.
No appearance entered nor brief submitted for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 430]
Appellant contends*fn1 that he was denied his right to a speedy trial under Pa.R.Crim.P. 1100(a)(1).*fn2 We are constrained to agree with this contention and therefore reverse the judgment of sentence and discharge appellant.
[ 253 Pa. Super. Page 431]
A criminal complaint, charging various offenses, was lodged against appellant on January 5, 1974.*fn3 The Commonwealth was therefore required under Rule 1100 to bring appellant to trial by October 2, 1974. On August 29, 1975, appellant, asserting that trial did not commence within the prescribed period, applied to the court below for an order dismissing the charges against him. The lower court denied this petition, and trial commenced on September 16, 1975, 619 days after the filing of the complaint.
All periods of delay beyond the prescribed 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, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). The Commonwealth did not file a petition to extend in the instant case. See Pa.R.Crim.P. 1100(c). In denying appellant's petition to dismiss, the court below concluded that all periods of delay beyond the mandatory period were excludable under Pa.R.Crim.P. 1100(d) from the computation of the period. We disagree with the conclusion of the court below.
Pa.R.Crim.P. 1100(d) provides that periods of delay may be excluded from the computation of the mandatory period only if such periods of delay are caused by: "(1) the unavailability of the defendant or his attorney; (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded." The record shows that the case was continued from January 10, 1974, until February 19, 1974, at the request of defense counsel who had a conflicting court schedule. Forty days are thus excluded under Rule 1100(d)(1). The case was next
[ 253 Pa. Super. Page 432]
delayed from February 19, 1974, until July 23, 1974, because appellant had escaped from custody. Since appellant was returned to custody and therefore available for trial on July 5, 1974, the 136 day period from February 19 until July 5 is therefore excluded under Rule 1100(d)(1).*fn4 See Commonwealth v. Richbourg, 246 Pa. Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Jones, 250 Pa. Super. 98, 378 A.2d 471 (1976). The case was further delayed from December 13, 1974, until December 18, 1974, because appellant's counsel was otherwise engaged. This five day period is excludable under Rule 1100(d)(1). On December 18, 1974, appellant again failed to appear in court and a bench warrant was issued. The record shows that appellant was in custody and the bench warrant withdrawn on April 17, 1975. The 120 day period from December 18 until April 17 is therefore excludable under Rule 1100(d)(1).*fn5 The period of delay excludable under Rule 1100 totals 301 days.*fn6 As previously stated, appellant filed his petition to dismiss on August 29, 1975, 601 days after the filing of the complaint. By subtracting the total period of delay attributable to appellant from the 601 day period, we find that 300 days had expired when appellant filed his petition to dismiss. We therefore reverse the judgment of sentence and discharge appellant.
[ 253 Pa. Super. Page ...