No. 653 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, before the Honorable Joseph T. Labrum, Jr., under No. 77, March Sessions, 1975.
Roy H. Davis, Assistant Public Defender, Drexel Hill, for appellant.
D. Michael Emuryan, Assistant District Attorney, with him Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Van der Voort, J., dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 253]
Appellant files this direct appeal alleging a violation of his right to a prompt trial under Pa.R.Crim.P. 1100. The relevant facts contained in this case may be summarized as follows:
A criminal complaint charging appellant with possession of narcotics was filed on November 21, 1974. The record establishes that from the inception date of this complaint, the Commonwealth was clearly aware of the fact of appellant's
[ 258 Pa. Super. Page 254]
incarceration outside of Pennsylvania, at the Delaware State Prison in Smyrna, Delaware. Under the 180-day period applicable for commencement of appellant's trial,*fn1 the Commonwealth was required to bring appellant to trial no later than May 20, 1975. On January 6, 1975 the case was sent to the Clerk of Courts, Criminal Division, Delaware County Common Pleas Court, and lodged in the docket on January 8, 1975. On January 28, 1975 a notice of grand jury presentment was mailed to appellant at the Delaware State Prison. A letter dated January 30, 1975 from the Supervisor of the Delaware Prison was received by the Delaware County District Attorney formally advising him of appellant's incarceration in their institution. On March 3, 1975 the indictment against appellant was approved by the Grand Jury. When appellant was not presented for arraignment on March 19, 1975, the lower court issued a bench warrant as a detainer sent to the Delaware State Prison.
On May 5, 1975, the Commonwealth filed a request for extension of time for trial pursuant to Pa.R.Crim.P. 1100(c),*fn2 with a copy of the request sent to appellant on May 7, at the Delaware State Prison. On May 9, 1975, the lower court granted the Commonwealth extension, ex parte and without a hearing. The order granting this extension specified the new date within which trial must be commenced as "no later than August 20, 1975." On June 4, 1975 the District Attorney wrote to appellant, inquiring as to whether appellant would be willing to return to Pennsylvania voluntarily.
[ 258 Pa. Super. Page 255]
Appellant refused and on June 10, 1975 the district attorney initiated proceedings under the Interstate Detainer Act*fn3 to acquire appellant's presence for trial in Pennsylvania. On June 16, 1975 when the case was called for trial, the Commonwealth obtained a continuance from the lower court to September 15, 1975 on the ground that appellant was still in Delaware State Prison.
On September 10, 1975 appellant was returned to Pennsylvania and counsel was appointed. On October 7, 1975 (317 days after the complaint) appellant tendered a negotiated plea agreement which the trial court refused to accept on January 16, 1976 and therefore permitted appellant to withdraw the plea.*fn4 On January 29, 1976 (429 days after the complaint)*fn5 appellant filed an application to dismiss under Rule 1100(f) which was denied on February 27, 1976. Finally, appellant was tried and convicted of possession and ...