No. 1150 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 458 and 461, August Term, 1976.
Stephen F. Freind, Havertown, for appellant.
No brief filed on behalf of Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement in which Van der Voort, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 268 Pa. Super. Page 50]
Appellant was convicted following a non-jury trial in the Philadelphia Court of Common Pleas of carrying firearms on public streets or public property,*fn1 carrying firearms without a license,*fn2 and possession of a prohibited offensive weapon.*fn3 He was sentenced on the two Fire Arms Act violations to a total term of imprisonment of from time-in to twenty-three months, but was released to enter an in-patient drug program. He was sentenced on the prohibited offensive weapons charge to a two-year term of probation to run consecutively to the sentence on the firearms violations. This trial in the court of common pleas was a result of appellant's appeal of his conviction on the same charges in the Philadelphia Municipal Court.*fn4
[ 268 Pa. Super. Page 51]
The basis of appellant's appeal to this court is that he was denied his right to a speedy trial under Pa.R.Crim.P. 6013,*fn5 and therefore should be discharged. We are constrained to agree with appellant, and thus reverse the judgment of sentence and order him discharged.
The facts pertinent to our consideration of the issue appellant raises are as follows. Appellant was arrested, a complaint was filed against him, and he was arraigned all on May 6, 1975. The original trial date was set for June 6, 1975, but when appellant failed to appear, the case was relisted for July 14, 1975. On July 14, appellant requested and was granted a continuance to August 29. On August 29, the judge assigned to the case was unable to hear it, and the case was relisted to November 17; on that day, appellant again requested and was granted a continuance to November 28, 1975. Appellant failed to appear for trial on November 28, and a bench warrant was issued. The bench warrant was withdrawn on January 2, 1976, and the case was then listed for trial for January 27, 1976. On January 27, the Commonwealth requested and was granted a two-day continuance. The municipal court granted appellant's motion to suppress certain physical evidence on January 29, and the Commonwealth appealed that order. The case was continued on January 29, February 4, March 2d, 9th, and 19th, April 23, and May 3, pending disposition of the Commonwealth's appeal of the municipal court's suppression order. That order was reversed by the court of common pleas on May 3, 1976. The Commonwealth filed a petition to extend under Pa.R.Crim.P. 6013(c)(1)*fn6 on May 10, the 370th day
[ 268 Pa. Super. Page 52]
after arraignment. Appellant filed a petition to dismiss on May 17, pursuant to Pa.R.Crim.P. 6013(e).*fn7 The municipal court denied appellant's petition to dismiss and granted the Commonwealth's petition to extend on May 19, 1976; the new run date established was August 28, 1976. Trial began on July 28, 1976, and appellant was found guilty on all counts charged. He then appealed to and was tried before the court of common pleas.*fn8
Appellant contends that the petition to extend filed by the Commonwealth on May 10, 1976, was not timely, i. e., it was filed after 210 days had run for Rule 6013 purposes, and therefore was improperly granted. The municipal court, in reviewing the record, found that 163 days were excludable from the calculation of the run time under Pa.R.Crim.P. 6013(d),*fn9 and thereby construed the Commonwealth's petition to extend as timely filed on the 207th day for Rule 6013 purposes. We find that the municipal court erroneously calculated the excludable ...