No. 255 January Term, 1977, No. 567 January Term, 1977, Appeals from the orders of the Superior Court in Commonwealth v. Hagans and Commonwealth v. Kelly at Nos. 375 and 249, October Term, 1976, reversing the Judgments of Sentence and discharging defendants at Nos. 1783 and 1786, January Term, 1975, and Nos. 737-39, November Sessions, 1973, in the Court of Common Pleas, Trial Division, Philadelphia County.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for appellant.
John W. Packel, Asst. Defender, Chief, Appeals Div., Philadelphia, for Edward Hagans.
John W. Packel, Asst. Defender, Chief, Appeals Div., Leonard Sosnov, Asst. Defender, Philadelphia, for Curtis Kelly.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion.
At the request of the Commonwealth we have granted review of these two orders of the Superior Court (Commonwealth v. Hagans, 242 Pa. Super. 393, 364 A.2d 328 (1976)), and (Commonwealth v. Kelly, 246 Pa. Super. 196, 369 A.2d 879 (1976)), because they present a significant question in the computation of the time in which a defendant must be brought to trial under Pennsylvania Rule of Criminal Procedure 1100. The precise issue raised is whether the failure of a defendant to object to a delay caused by a co-defendant or the co-defendant's counsel permits that period to be excluded under section (d) of Rule 1100 in the computation of the period in which the defendant must be tried. In view of the limited issue presented and the absence of a factual dispute we may here dispense with a detailed recitation of the circumstances of the arrests and the procedural histories that followed in each case.*fn1 It is sufficient for our purposes that the period of delay in question was not occasioned by instant appellees or their counsel and that the failure to exclude this period from the computation would result in a finding that trial commenced beyond the period required under Rule 1100. In each instance the trial courts accepted the view that the appellees' acquiescence in the delays justified exclusion under section (d). The Superior Court reversed, holding that absent affirmative evidence of an agreement or approval of the delay, section (d) does not provide for the exclusion where the delay was caused by the
unavailability of a co-defendant or his counsel. We now affirm for the reasons that follow.*fn2
"In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of ...