No. 1173 April Term, 1978, No. 1183 April Term, 1978, Appeals from the Judgment of Sentence in the Court of Common Pleas of Somerset County, Criminal Division, No. 48 Criminal 1977.
Wilbert H. Beachy, III, Public Defender, Somerset, for appellant, Emmett.
Joseph B. Policicchio, Assistant Public Defender, Somerset for appellant, Crossland.
David B. Hartman, Administrative Assistant District Attorney, Somerset, did not file a brief on behalf of the Commonwealth, appellee.
Price, Hester and Montgomery, JJ. Price, J., concurs in the result.
[ 274 Pa. Super. Page 26]
These consolidated appeals arise from the judgment of sentence of the Court of Common Pleas of Somerset County.
Both appellants herein were convicted of burglary, theft and receiving stolen property arising out of the same criminal episode.
Appellants were arrested in Garrett County, Maryland. Incident to the arrest, the contents of their pockets were examined. One of the articles in their possession was a validated, but unused Pennsylvania State Inspection Sticker. Also found was a key for a motel room in Uniontown, Pennsylvania.
[ 274 Pa. Super. Page 27]
After the arrest in Maryland, the Pennsylvania State Police were informed of the events and subsequently they discovered that the inspection sticker had been stolen in a burglary and theft in Confluence, Pennsylvania. The state police, thereafter obtained search warrants for the motel room in Uniontown and appellant Crossland's business and dwelling house.
The searches yielded two shotguns form the business and certain personal property and checks from the motel room, which items subsequently were found to be stolen.
After a non-jury trial on March 27, 1978, appellants were found guilty of burglary, theft and receiving stolen property. Post verdict motions were denied and this appeal follows.
Appellants initially contend that the lower court should have dismissed this action because the Commonwealth failed to bring them to trial within the mandates of Rule 1100.
On February 8, 1977, appellants were arrested in Maryland where they were being held on Maryland charges. Thus, the Commonwealth had 180 days from that date to bring appellant to trial or until August 7, 1977. Appellants were not tried until March 27, 1978.
The dispute here is with the period of time from February 8, 1977 to June 30, 1977. The Commonwealth asserted, and the lower court agreed that this period was to be excluded in computing the time for the Rule, since appellants were incarcerated in Maryland awaiting disposition of the Maryland charges.
Appellants contend, however, that before this time is excluded, the Commonwealth must show that they used due diligence in attempting to secure appellants return and in this case it is clear that no due diligence was shown, thus appellants were not unavailable for trial under Rule 1100(d)(1).
Rule 1100(d)(1) provides that "in determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings
[ 274 Pa. Super. Page 28]
as results from (1) the unavailability of the defendant or his attorney." Mere incarceration in another jurisdiction, however, does not make appellant unavailable. Appellant will be considered unavailable only for the period of time during which his presence could not be secured despite due diligence by the Commonwealth. Commonwealth v. Warman, 260 Pa. Super. ...