No. 180 April Term, 1979, Appeal from an Order dated February 5, 1979, of the Court of Common Pleas, Criminal Division, of Fayette County at No. 294 of 1977.
Ralph C. Warman, Uniontown, for Commonwealth, appellant.
Vincent J. Roskovensky, II, Uniontown, for appellee.
Price, Hester, and Cavanaugh, JJ.
[ 280 Pa. Super. Page 129]
Pursuant to the defendant's motion under Pa.R.Crim.P. 1100(f) the lower court dismissed the complaint with prejudice. The Commonwealth appeals. We remand.
[ 280 Pa. Super. Page 130]
On March 8, 1977 the defendant was arrested for driving while intoxicated. On the same day a complaint was filed, he waived a preliminary hearing and was released on bond. On April 6, 1977 the Commonwealth sent to the defendant a notice of his trial date by certified mail return receipt requested. This notice was returned to the Commonwealth marked "unclaimed" on April 22, 1977.*fn1 On the scheduled trial date, June 15, 1977, the defendant did not appear and at the Commonwealth's request a bench warrant was issued. On August 17, 1978 the defendant was stopped for motor vehicle violations; he was then arrested on the bench warrant and subsequently was released. In September he filed a motion for continuance to the December term of court*fn2 and in November he filed a motion to dismiss under Pa.R.Crim.P. 1100(f) and a hearing was held. The court granted the motion to dismiss the complaint with prejudice and the Commonwealth filed the instant appeal.
The Commonwealth is required to try a defendant within 180 days of the filing of the complaint. Pa.R.Crim.P. 1100. Any delay beyond the 180-day period ". . . must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of the rule [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail." Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976) quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). In the instant case defendant was not tried within 180 days from the filing of the complaint. The Commonwealth did not file for an extension of time under Pa.R.Crim.P.
[ 280 Pa. Super. Page 1311100]
(c). Therefore, it can prevail only if it is permitted to exclude a period of time under Pa.R.Crim.P. 1100(d).
Under 1100(d) the Commonwealth may exclude any period of delay which results from the unavailability of the defendant. Pa.R.Crim.P. 1100(d). The Commonwealth may exclude such period if while the defendant is on bail the Commonwealth properly notifies him of his trial date and he fails to appear, Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1330-31 (1978); Commonwealth v. Mizic, 274 Pa. Super. 331, 418 A.2d 432 (1980); Commonwealth v. McCulley, 270 Pa. Super. 115, 410 A.2d 1276 (1979), or if the Commonwealth establishes that despite the exercise of due diligence it was unable to locate the defendant. Commonwealth v. Smith, 274 Pa. Super. 229, at 232, 418 A.2d 380, at 382 (1980); Commonwealth v. Bundridge, 268 Pa. Super. 1, 407 A.2d 406, 408 (1979) allocatur granted February 4, 1980; Commonwealth v. Clark, 248 Pa. Super. 184, 374 A.2d 1380 (1977).
In Cohen, the Supreme Court held that "a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable [under Pa.R.Crim.P. 1100(d)] from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself." Cohen, supra, 481 Pa. at 356, 392 A.2d 1327, 392 A.2d at 1331 (emphasis added). The Commonwealth argues that it properly notified the defendant of his trial date and that therefore the defendant was unavailable from the time of the scheduled trial until his arrest on the bench warrant. It relies on Pa.R.Crim.P. 309 as authority that notice of the trial date can be given by certified mail. It contends that for purposes of the exclusion under ...