No. 1614 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment Nos. 498, 499, 501, 502, 504, 505 of the May Sessions, 1975.
Eugene H. Clarke, Jr., Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 261]
This appeal arises from judgment of sentence imposed upon appellant's conviction of burglary, conspiracy, and four counts of robbery. Appellant makes four arguments in support of his prayer for discharge, or, in the alternative, remand for a new trial.
Appellant argues that his rights under Pa.R.Crim.P. 1100(a) were violated.*fn1 Appellant was arrested on March 28, 1975. Accordingly, the one hundred eighty day period prescribed in the Rule for the commencement of trial ended on September 25, 1975. Appellant, however, was not tried during that period. On October 6, 1975, the Commonwealth filed a petition pursuant to Pa.R.Crim.P. 1100(c) for an extension of time to commence trial. This petition was initially denied by the lower court as untimely; but upon reconsideration, the court vacated its original order, and granted the petition. Trial commenced on April 20, 1976.
[ 262 Pa. Super. Page 262]
Our cases hold that a petition under Pa.R.Crim.P. 1100(c) must be filed prior to the expiration of the mandatory period set forth in the Rule for the commencement of trial, or set forth in a previous order granting an extension of time. Commonwealth v. Delauter, 257 Pa. Super. 510, 390 A.2d 1354 (1978); Commonwealth v. Wharton, 250 Pa. Super. 25, 378 A.2d 434 (1977); Commonwealth v. Dandy, 252 Pa. Super. 387, 381 A.2d 972 (1977). Moreover, the Commonwealth will not be allowed to file a petition nunc pro tunc. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). However, in calculating the mandatory period for the commencement of trial, all periods of delay defined in Pa.R.Crim.P. 1100(d) must be excluded. Commonwealth v. Shelton, supra; Commonwealth v. Dandy, supra; Commonwealth v. Miller, 247 Pa. Super. 132, 371 A.2d 1362 (1977). Rule 1100(d) provides:
In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) The unavailability of the defendant or his attorney;
(2) Any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the ...