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filed: April 3, 1980.


No. 586 October Term 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Phila. County, Trial Div., Criminal Term, No. 1645 of August Sess. 1975.


John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Spaeth and Watkins, JJ.

Author: Spaeth

[ 277 Pa. Super. Page 20]

Appellant was convicted of statutory rape (18 Pa.C.S.A. § 3122) and corruption of minors (18 Pa.C.S.A. § 3125). On appeal he argues that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated and that he should therefore be discharged.*fn1

[ 277 Pa. Super. Page 21]

A criminal complaint charging appellant with rape, statutory rape, and corruption of minors was filed on August 1, 1975.*fn2 On August 5, 1975, appellant was arrested. On August 13, a preliminary hearing was held, and on August 28, indictments were returned against appellant. A pretrial conference was held on September 19, 1975, and the case was continued until October 16. On October 16, the case was again continued, this time to November 17, because the notes of the preliminary hearing were unavailable. On November 17, the case was listed for trial on December 29, 1975. The record states, and both parties represent, that on December 29, trial was continued until February 9, 1976, because appellant was "not brought down" from prison. On February 5, appellant filed an application pursuant to Pa.R.Crim.P. 1100(f) alleging that his rights under the Rule had been violated and requesting dismissal of the charges. A hearing on the application was held on February 24, at which time it was denied by the lower court. At the February 24 hearing, after the denial of appellant's application, the Commonwealth, over appellant's objection, orally moved the court for an extension of time to commence trial pursuant to Pa.R.Crim.P. 1100(c). The court granted the

[ 277 Pa. Super. Page 22]

    oral motion and extended the time for trial until April 10, 1976. Trial commenced on March 22, 1976.

According to the lower court's calculations, Pa.R.Crim.P. 1100(a) permitted the Commonwealth until February 2, 1976, to try appellant.*fn3 The lower court found, however, that the continuances granted on September 19 and October 16 had been granted at appellant's request, and that of the fifty-nine day delay resulting from the continuances, twenty-nine days had to be excluded under Rule 1100(d)(2).*fn4 The court therefore ruled that the mandatory period did not end until March 2, 1976, and dismissed appellant's application.

Appellant argues that the evidence at the February 24 hearing was insufficient to show that he requested either

[ 277 Pa. Super. Page 23]

    the September 19 or the October 16 continuance.*fn5 We reject appellant's argument concerning the October 16 continuance, for in his application to dismiss the indictments under Rule 1100(f), appellant represented to the lower court that the continuance from October 16 to November 17 was granted at his request. Appellant's argument concerning the September 19 continuance, however, is another matter.

At the February 24 hearing, the lower court stated:

The case was continued on September 19, 1975, to October 16, 1975, a period of twenty-seven days, for a pre-trial Question of Fact.

The Court finds this to be a joint continuance and, in a joint continuance, is also a defense continuance, so that twenty-seven days I am finding as a defense continuance, although it does not toll the Rule, being the first twenty-seven days of thirty.

The records reflect a pre-trial Question of Fact. It does not say by whom, but where there is a pre-trial Question of Fact, the Court is inferring from the records-from

[ 277 Pa. Super. Page 24]

    the evidence in front of the Court, that that was a joint request. If either side is prepared to present contrary evidence, of course it would be admissible and relevant.

No evidence, other than the Quarter Sessions file which the lower court was obviously reading, was introduced at the February 24 hearing on the issue of who (appellant, the Commonwealth, or the court) had requested the continuance on September 19. We have examined the record and have discovered no evidence on this issue, other than a cryptic notation indicating that the case was continued from September 19 to October 16 "for pre-trial conf."

It is settled that the Commonwealth had the burden of proving that any delays beyond February 2 were to be excluded in computing the mandatory period. E. g., Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Davis, 261 Pa. Super. 204, 395 A.2d 1388 (1978); Commonwealth v. Clark, 256 Pa. Super. 456, 390 A.2d 192 (1978). Moreover, although "in reviewing a hearing court's ruling that the Commonwealth has met its burden, we shall consider only the evidence presented by the Commonwealth and so much evidence as presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted," Commonwealth v. Mitchell, supra, 472 Pa. at 564, 372 A.2d at 831, it is clear that by inferring from a silent record that appellant was the one who requested the September 19 continuance, the lower court erred. Since the Commonwealth was given the opportunity to introduce evidence at the February 24 hearing to show that the delay caused by the continuance was caused by appellant, but failed to introduce any such evidence, the court should not have considered this delay in determining the number of days to be excluded from the 180 day mandatory period. It follows, therefore, that at most only two days of the October 16 continuance should have been excluded under Rule 1100(d)(2) from the mandatory period.

[ 277 Pa. Super. Page 25]

The Commonwealth argues that the lower court properly denied appellant's Rule 1100(f) application because appellant "on December 29, 1975, acquiesced in the scheduling of his trial for a date beyond the mechanical expiration date, to February 9, 1976." Commonwealth's Brief at 19. In Commonwealth v. Lovera, 248 Pa. Super. 439, 441, 375 A.2d 178, 179 (1977), this court unanimously held that a defendant has no duty to object to the scheduling of his trial beyond the period prescribed by Rule 1100, so long as he does not make "any statements or act in any other manner to indicate that he approve[s] of or accept[s] the delay." See also Commonwealth v. Garnett, 258 Pa. Super. 115, 392 A.2d 711 (1978); Commonwealth v. Taylor, 254 Pa. Super. 211, 385 A.2d 984 (1978). The Commonwealth does not allege that appellant acted in any manner to indicate that he approved of the delay. Indeed, from the record and the representations of both parties, it appears that the only reason appellant was not tried on December 29 was the Commonwealth's failure to bring appellant from prison to the courtroom. It was not appellant's obligation to bring himself to trial, but the Commonwealth's. E. g., Commonwealth v. Hagans, 242 Pa. Super. 393, 364 A.2d 328 (1976), aff'd, 482 Pa. 572, 394 A.2d 470 (1978); Commonwealth v. Adams, 237 Pa. Super. 452, 352 A.2d 97 (1975).

The Commonwealth also argues that "[o]n February 5, 1976, [appellant] filed his petition to dismiss, causing his trial to be delayed until March 19 (when he requested a jury trial, which began three days later on March 22). . . . [S]ince [appellant's] February 5 petition prevented the trial from commencing as scheduled on February 9, [appellant] cannot now complain of a violation of Rule 1100." Commonwealth's Brief at 19-20. We have consistently held, however, that "Rule 1100 does not exempt pre-trial motions (other than a motion for a continuance) from the relevant time period." Commonwealth v. Millhouse, 239 Pa. Super. 445, 451, 362 A.2d 398, 401 (1976), rev'd on other grounds,

[ 277 Pa. Super. Page 26470]

Pa. 512, 368 A.2d 1273 (1977). See also Commonwealth v. Goodman, 260 Pa. Super. 266, 393 A.2d 1256 (1978); Commonwealth v. Delauter, 257 Pa. Super. 510, 390 A.2d 1354 (1978); Commonwealth v. Mancuso, 247 Pa. Super. 454, 372 A.2d 444 (1977). Thus, while appellant's application under Rule 1100(f) may have given the Commonwealth grounds for filing a timely Rule 1100(c) petition for an extension of time to commence trial, Commonwealth v. Millhouse, supra, any delay caused by the application may not be excluded from the mandatory period.*fn6 For the same reason, we must also reject the Commonwealth's argument that the fifty-two day delay between November 17 and December 29 may be excluded from the mandatory period because appellant requested a non-jury trial.

The record shows that the Commonwealth proved that only one continuance-from October 16 to November 17-was granted at the request of appellant. Thus, under Pa.R.Crim.P. 1100(a)(2), only two days can be excluded from the computation of the mandatory period under Rule 1100(a)(2). The original mandatory period ended February 2. With the exclusion of two days, the Commonwealth was required to bring appellant to trial by February 4. The Commonwealth failed to do this, and on February 5 appellant filed an

[ 277 Pa. Super. Page 27]

    application under Rule 1100(f) to dismiss the indictments. The lower court should have granted this application.*fn7

Judgment of sentence reversed and appellant is discharged.

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