No. 108 January Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, at No. 445-1 of 1974.
Arthur R. Sagoskin, Gary B. Gilman, Doylestown, for appellant.
Peter F. Schenck, Asst. Dist. Atty., Stephen B. Harris, Doylestown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., concurs in the result. Nix, J., files a dissenting opinion. Larsen, J., files a dissenting opinion.
Bruce B. Bussey, appellant, was convicted of murder of the first degree following a non-jury trial in the Court of Common Pleas of Bucks County. Post-verdict motions were denied, and judgment of sentence of life imprisonment was imposed. This appeal followed.
Bussey raises two issues seeking discharge or the grant of a new trial.
In support of his request for discharge, Bussey maintains the trial court erred in denying his application for an order dismissing the charges pursuant to Pa.R.Crim.P. 1100(f).
While trial did not commence within two hundred seventy (270) days from the date the complaint was filed, Pa.R.Crim.P. 1100(a)(1), and while no petition to extend the mandatory period in which to commence trial was filed, Pa.R.Crim.P. 1100(c), the Commonwealth argues trial commenced within the mandatory period of Pa.R.Crim.P. 1100(a)(1) because computation of the mandatory period requires exclusion of a period of time sufficient to bring the commencement of trial within the two-hundred-seventy-(270)-day mandate. Specifically, the Commonwealth urges
the period between December 21, 1973 and January 18, 1974 should be excluded.*fn1 The Commonwealth is correct.
The record shows that, on December 21, 1973, Bussey appeared before a district justice for a preliminary hearing.*fn2 The district justice asked Bussey if he wished to obtain private counsel and received an affirmative reply. The Commonwealth indicated it would not oppose continuing the hearing, but asked that the date be set after "the first of the year." Subsequently, the hearing was set for January 18, 1974 at which time Bussey appeared with counsel. Counsel then requested a continuance which was granted.
Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977), is controlling as to this period. In Commonwealth v. Millhouse, supra, the accused who was not indigent presented himself for a preliminary proceeding without counsel and did not waive his right to counsel. For this reason, the proceeding was delayed. We concluded that, under such circumstances the accused was unavailable within the meaning of Pa.R.Crim.P. 1100(d)(1) and that the period of delay resulting from the unavailability, i. e. until counsel entered an appearance, was to be automatically excluded.
Instantly, Bussey appeared at a preliminary proceeding without counsel, did not waive his right to counsel, and was financially capable of retaining private counsel.*fn3 The delay in the proceeding was the result*fn4 of these circumstances
and counsel did not enter into the case until January 18, 1974.*fn5 Hence, Bussey was unavailable for this period, and it must be excluded pursuant to Pa.R.Crim.P. 1100(d)(1).*fn6
Since this period must be excluded in computing the mandatory period and since doing so brings the commencement of trial within the confines of Pa.R.Crim.P. 1100(a)(1), the trial court did not err in denying the application to dismiss.*fn7
In support of his request for a new trial, Bussey argues the trial court erred in refusing to grant his motion to suppress certain incriminatory statements given by him to police and in permitting evidentiary use of these statements at trial. Specifically, Bussey argues the statements were given in violation of his constitutional rights as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) [hereinafter: Miranda ] in that he did not expressly waive or indicate an understanding of his rights.*fn8 We agree.
Bussey was arrested on December 14, 1973, in Burlington, New Jersey, at approximately 1:30 a. m. by police of that city. At the scene ...