No. 2361 October Term 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, of Phila. County, Trial Div., Criminal Sect., imposed on Bills of Indictment, Nos. 2238, 2239, 2268 Sept. Sessions, 1975.
David Rudovsky, Philadelphia, for appellant.
Deborah E. Glass, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Van der Voort, J., files a dissenting opinion, in which Jacobs, President Judge, joins. 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 robbery, terroristic threats, possessing an instrument of crime, carrying a firearm without a license, and resisting arrest.*fn1 His contention is that he was not brought to trial within 180 days as required by Pa.R.Crim.P. 1100(a)(2).*fn2
The complaint was filed on August 24, 1975. A preliminary hearing was originally scheduled for August 29 but appellant was unable to appear because he was in the hospital. A rescheduled hearing for September 9 was continued because appellant was in prison. A hearing was finally held on September 16, and arraignment was set for October 14. On October 15 the court continued the arraignment until November 3. On October 23 the attorney for appellant filed a motion to suppress certain evidence and identification testimony. On November 3 the court continued the case until December 4, to allow appellant's attorney time to prepare the case. On December 4 the court granted another continuance, to January 6, 1976, because appellant's
[ 266 Pa. Super. Page 331]
attorney withdrew and a public defender was appointed. On January 6 the court continued the case to February 17, because appellant's attorney was unprepared. On February 17 the Commonwealth and appellant's attorney made a joint application for a bench warrant to secure the presence of the complainant in the case. On March 25 the parties again appeared in court but the bench warrant on the complainant was still outstanding. On April 23 the complainant appeared and a hearing on appellant's outstanding motion to suppress evidence was held. The same day the hearing judge denied the motion, and appellant requested that a new judge enter the case. On April 27 appellant made a motion to dismiss the case under Pa.R.Crim.P. 1100(f). On May 3 the motion was heard by a new judge, and appellant waived his rights under Pa.R.Crim.P. 1100 until the next listing. On May 25 appellant's motion to dismiss was denied. On June 4 trial commenced.
In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), our Supreme Court stated how the mandatory period for commencing trial under Rule 1100 is to be determined:
". . . 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."
Id., 469 Pa. at 13-14, 364 A.2d at 696-97 (quoting Commonwealth v. O'Shea, 465 Pa. 491, 495, 350 A.2d 872, 874 (1976)) (footnote omitted).
It will be recalled from the statement of facts that the complaint was filed on August 24, 1975, so that the run date for the mandatory period would normally be February 20, 1976. The trial, however, occurred on June 4, or 285 days after the complaint was filed. The lower court nevertheless found no violation of Pa.R.Crim.P. ...