No. 1759 October Term 1977, Appeal from the Order entered May 17, 1977 of the Court of Common Pleas, Criminal Div., of Northampton County at No. 251 January Term, 1975.
Michael E. Riskin, Assistant District Attorney, Bethlehem, and John E. Gallagher, District Attorney, Easton, for Commonwealth, appellant.
Louis S. Minotti, Jr., Easton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 269]
This is an appeal by the Commonwealth from an order granting appellee's motion to dismiss under Pa.R.Crim.P. 1100.
On January 19, 1975, a complaint was filed against appellee charging him with armed robbery and various other offenses. Appellee was subsequently arrested and placed in Northampton County jail to await trial. On February 2, while awaiting disposition of the charges, he escaped. When he failed to appear for his originally scheduled trial on April 29, a bench warrant was issued for his arrest. On September 26 the Commonwealth learned that appellee had been picked up by Federal authorities in New York on a warrant for robbing a post office in Easton, and had waived extradition to Philadelphia. In November the Commonwealth called the United States Marshall's office in Philadelphia and learned that it could have appellee for trial on escape charges. On November 11 the Commonwealth filed a writ of habeas corpus with the Federal authorities, and on the following day appellee appeared in Northampton County and pleaded guilty to the escape charges. He also requested a preliminary hearing on the armed robbery charge. This request was granted as there was some question whether the original preliminary hearing had been properly conducted. The preliminary hearing was to be held on December 19 but was continued until December 22, upon the request of defense counsel. Following the preliminary hearing, appellee was returned to Philadelphia.
[ 260 Pa. Super. Page 270]
Sometime after the preliminary hearing, the Commonwealth scheduled the trial on the armed robbery charge for February 9, 1976. On February 2 the Commonwealth called Philadelphia for the purpose of obtaining appellee for trial, only to learn that he had been transferred by the federal authorities to Georgia. In January and February the Commonwealth sought two extensions under Pa.R.Crim.P. 1100(c). The first was granted on February 4, and extended the time for trial to February 27; the second was granted on February 26, and extended the time for trial to April 30. On March 12 the Commonwealth sent a request under the Interstate Agreement on Detainers Act, 19 P.S. § 1431, to get temporary custody of appellee. On March 24 it was notified by the federal authorities in Georgia that appellee had been transferred to New Jersey. On April 2 the Commonwealth called the appropriate authorities in New Jersey, and on the same day or soon thereafter, instituted additional proceedings under the Interstate Agreement on Detainers Act. Soon afterwards, the New Jersey authorities advised the Commonwealth that appellee would not be transferred to Pennsylvania until New Jersey charges had been disposed of.
Between May 7, 1976, and January 19, 1977, the Commonwealth and New Jersey had several discussions concerning the availability of appellee. While appellee was being held in New Jersey, the Commonwealth received approval for four additional extensions under Pa.R.Crim.P. 1100(c) of the time for trial. In particular, the Commonwealth requested extensions on April 7, June 6, September 13 and December 22, 1976. The last extension extended the time for trial to February 25, 1977. On January 27, 1977, the New Jersey authorities returned appellee to Northampton County. On February 10, 1977, appellee filed his motion to dismiss under Pa.R.Crim.P. 1100(f).
The lower court found that 754 days had elapsed between the date the Commonwealth filed the armed robbery charges and appellee's motion to dismiss under Pa.R.Crim.P. 1100(f). The court divided the total period into ten sub-periods and
[ 260 Pa. Super. Page 271]
attempted to determine whether each period should be included in calculating the 180 day limit imposed by Pa.R.Crim.P. 1100. The court found that the first fourteen days, January 19, 1975, the date of complaint, to February 2, 1975, the date of escape, were "chargeable" to the Commonwealth. It found that the second period, from February 2, 1975, to September 26, 1975, was excluded from computation pursuant to Pa.R.Crim.P. 1100(d) because appellee was "unavailable" for trial. The court found that the third period, from September 26, 1975, when the Commonwealth learned that appellee was in detention in Philadelphia, to November 12, 1975, when appellee was returned to Northampton County, was "chargeable" to the Commonwealth since it did not take action to secure appellee's presence for trial. The court dealt with the period from November 12, 1975, when appellee's counsel requested a preliminary hearing, to December 22, 1975, when the hearing was held, as a fourth period. It found that of the forty days involved, thirty were "chargeable" to the Commonwealth. The court characterized the request for a preliminary hearing by defense counsel as a request for "a continuance," and excluded the last ten days of the period under Pa.R.Crim.P. 1100(d)(2). The court found that the fifth period, from December 22, 1975, the date of the preliminary hearing, to February 4, 1976, the date the Commonwealth received its first extension, was "chargeable" to the Commonwealth because it did not take action to secure appellee's return, first from Philadelphia, and after February 2, from Georgia. With respect to the sixth period, February 4, 1976, to March 12, 1976, the date the Commonwealth filed a detainer request with federal authorities in Georgia, the court made two findings. First, it found ...