No. 479 January Term, 1977, Appeal from an order of the Superior Court which affirmed the judgment of the Court of Common Pleas of Bucks County, at No. 2574 of 1975.
Mel D. Kardos, Asst. Public Defender, Doylestown, for appellant.
Kenneth G. Biehn, Dist. Atty., Stephen B. Harris, 1st Asst. Dist. Atty., Doylestown, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Eagen, C. J., and Larsen, J., note their dissent.
Prior to trial on the instant charges appellant sought a dismissal of the indictment contending that the Commonwealth
had not met its obligation in bringing the matter to trial within the time required by Pa. Rule of Crim. Procedure 1100. The motion to dismiss was denied and a non-jury trial followed in which appellant was found guilty of receiving stolen property. The Rule 1100 question was raised again in post-verdict motions and before the Superior Court and on each occasion the question was decided against appellant. We granted review.*fn1
Since the written complaint was filed in this case after June 30, 1974, the trial should have commenced within 180 days from the date on which the complaint was filed. Pa. Rule Crim. Procedure 1100(a)(2). Both the Commonwealth and appellant agree that one hundred and eighty calendar days from the date the complaint was filed expired on February 2, 1976. The trial in fact commenced on March 17, 1976. The trial court's finding that there was not a violation of Rule 1100 was based upon the conclusion that two periods (one of 20 days duration and the other of 49 days) were properly excluded under section (d) of the Rule. We cannot agree for the reasons that follow.
In determining the validity of the finding as to the first period excluded by the court below the following chronology is significant. The case was listed for arraignment on January 7, 1976. At some point prior to arraignment, the trial had been scheduled to begin on January 29, 1976. Appellant failed to appear for the scheduled arraignment; the reason for her absence does not appear in the record before us. On January 27, 1976, the bench warrant which had been issued for her absence on January 7, 1976, was withdrawn and the trial date of January 29, 1976 was left undisturbed. There is no contention that appellant's actions between January 7th and January 27th in any way prevented
the commencement of trial on the scheduled date of ...