No. 1584 October Term 1977, Appeal from the Judgment of Sentence imposed by the Hon. Edwin E. Lippincott, II, in the Court of Common Pleas of Delaware County, Pa., Criminal Div., as of No. 5291, B,E.G, & H, September, 1975.
Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Jacobs, President Judge, dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant was convicted of simple assault, terroristic threats, crimes committed with a firearm, and criminal conspiracy.*fn1 One of appellant's contentions is that he was not brought to trial within 180 days as required by Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Crim.P. 1100(a)(2).*fn2 We agree and shall therefore order appellant discharged.*fn3
The complaint was filed on August 12, 1975. Trial was scheduled for January 14, 1976. On January 14 defense counsel requested a continuance to January 19, which was granted. On January 16 defense counsel filed a motion to suppress evidence and a petition for a psychiatric examination of appellant. On January 19, after argument, the lower court deferred decision on the motion to suppress but granted the petition for a psychiatric examination; when defense counsel requested a continuance to allow time for the psychiatric examination the court granted the request and set a new trial date of March 8. Defense counsel noted on the continuance form: "Rule 1100 waived from date of continuance (1/19/76) to new trial date." Record Document # 12. On January 23 the lower court entered an order committing appellant to Farview State Hospital for "a complete psychiatric evaluation to determine his mental capacity at the time of the alleged incident . . . and his competency to stand trial."
On March 8 appellant was not brought down from Farview, and the Commonwealth requested a continuance, asserting
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that Farview had been "checked," and that appellant was "listed for staff review on Apr. 2." Record Document # 15. The lower court granted the request and set a new trial date of April 5.
On March 25 defense counsel filed a petition to dismiss under Rule 1100(f), Pa.R.Crim.P. 1100(f),*fn4 alleging that the Commonwealth had failed to commence his trial within the prescribed time period of 180 days. On March 31 the court held a hearing on the petition to dismiss, and on other defense motions. On April 1 the court denied the petition to dismiss but granted "[appellant's] Motion for an Independent Psychiatric Examination, which Motion [appellant] submitted without prejudice in the event [appellant's] petition under Rule 1100 was not granted . . . ." In granting the motion for an independent psychiatric examination the court imposed several conditions, one of which was that "[appellant] . . . and his attorney . . . agreed to waive Rule 1100 for the period commencing March 31, 1976 and terminating 120 days thereafter."*fn5
Trial was commenced on July 13. On July 15 the jury returned its verdict of guilty. Appellant timely filed written post-verdict motions raising inter alia the court's failure to grant his Rule 1100(f) petition to dismiss. The motions were denied, and sentence was imposed. This appeal followed.
In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), our Supreme Court stated how the mandatory period for commencing trial ...