No. 811 October Term 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 506, 508, and 511 to 516, May Term 1975.
Colie B. Chappelle, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., notes dissent. Hester, J., files a dissenting statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.
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Appellant was convicted by a jury of six counts of robbery, one count of burglary, and one count of conspiracy. His post verdict motions were denied, and he was sentenced to three consecutive terms of imprisonment of five to twenty years, followed by twenty years probation.
Appellant argues, inter alia, that his right to a prompt trial under Rule 1100 of the Pennsylvania Rules of Criminal Procedure was violated.
On March 25, 1975, the complaint against appellant was presented to a judge, who issued a warrant for appellant's arrest. Under Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), when a complaint is presented to a court, Rule 1100 begins to run. Thus, under the rule, the Commonwealth had until September 21, 1975, to bring appellant to trial; since September 21 was a Sunday, the Commonwealth had until September 22, 1975. Commonwealth v. Jones, 473 Pa. 211, 373 A.2d 1338 (1977); Act of Nov. 25, 1970 P.L. 707, No. 230, as amended by the Act of Dec. 6, 1972, P.L. 1339, No. 290, 1 Pa.C.S. § 1908. In fact appellant was not brought to trial until January 22, 1976.
The lower court ruled that because of delays attributable to appellant, and therefore to be excluded from calculation under Rule 1100(d), the run date was extended to January
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, 1976. Accordingly, the court concluded, no violation of Rule 1100 occurred.*fn1 We disagree.
The court properly excluded 7 days, the period from April 9 to April 16, 1975. During this period appellant's counsel was unavailable for trial. The delay was therefore attributable to appellant and to be excluded under Rule 1100(d).
Three of the periods excluded, however, April 16 to April 23, July 30 to August 27, and August 27 to September 10, 1975, a total of 49 days, were the result of delays caused by appellant's co-defendants or their counsel. Since the record does not affirmatively show that appellant approved of or contributed to these delays, they should not have been excluded in calculating appellant's run date. Commonwealth v. Kelly, 246 Pa. Super. 196, 369 A.2d 879 (1976); ...