No. 1326 OCTOBER TERM, 1979 Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 2030 of 1976.
Paul R. Weber, Assistant Public Defender, Doylestown, for appellant.
Dana C. Jones, Jr., Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ.
[ 283 Pa. Super. Page 197]
The lower court, sitting without a jury, found appellant guilty of simple assault and conspiracy. Appellant argues that the charges against him should have been dismissed because of a violation of Rule 1100 and because the evidence was insufficient to sustain the verdict. Due to our disposition of the first issue we will not need to examine the second.
The complaint in this case was filed on June 28, 1976. The 180 day period would thus expire on December 27, 1976. The appellant was placed on bail. His case was listed for
[ 283 Pa. Super. Page 198]
trial on November 1, 1976 (126 days after the filing of the complaint), and postponed at the request of the prosecution to December 14, 1976 (169 days). Appellant was notified of the December 14th trial date by letter dated November 8, 1976. He failed to appear on December 14, 1976 and a Bench Warrant was issued.*fn1 The prosecution made no serious effort to locate appellant and serve the Bench Warrant even though his actual residence at the time was known. He appeared voluntarily for a hearing on the Bench Warrant on January 19, 1977 (204 days after the filing of the complaint) at which time the Bench Warrant was rescinded and the case was again listed for trial on February 15, 1977 (231 days).
On the trial date, appellant presented the trial judge with an application to dismiss charges pursuant to Rule 1100. The judge denied the application to dismiss saying "the Commonwealth has shown no lack of diligence."
Appellant argues that the Commonwealth's admitted failure to file an application for extension beyond the 180 days is fatal unless the delay is excused by Rule 1100(d). He claims that he was never "unavailable" within the meaning of Rule 1100(d) because his whereabouts were always known. The Commonwealth's argument is that appellant waived the right to argue about the period from November 12th to December 14th by failure to include such argument in his post-trial motions brief, and that appellant was unavailable from December 14th until he voluntarily appeared on January 19th.
The lower court cites Commonwealth v. Cohen and Holmes, 481 Pa. 349, 356, 392 A.2d 1327 (1978), in holding that the defendant was certainly unavailable ...