No. 3029 October Term, 1978 (Journal No. 2229/1979), Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, Philadelphia, Imposed on Bill of Information Nos. 1351-52, August Session, 1977.
Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Roberts, JJ.*fn* Wickersham, J., files a dissenting statement.
[ 283 Pa. Super. Page 371]
Four hundred forty-four days after filing the complaint, the Commonwealth brought appellant Nathan Fisher to trial. At issue is whether trial was timely under the 180 day rule of Pa.R.Crim.P. 1100(a)(2). It is agreed that 193 days are excludible under Pa.R.Crim.P. 1100(d)(1) because during that time the trial court found appellant incompetent to stand trial. For 212 days, however, the court adjudged appellant competent to stand trial, but committed appellant
[ 283 Pa. Super. Page 372]
to a mental health care facility for treatment. We must decide whether the period during which appellant was competent but committed was excludible time under the provisions of Rule 1100. Unlike the trial court, we conclude that appellant was available and thus, we hold that the Commonwealth failed to commence appellant's trial within the runtime of the Rule. Accordingly, we reverse and order appellant discharged.
On August 11, 1977, the Commonwealth issued a criminal complaint charging appellant with aggravated assault, possessing instruments of crime, and simple assault. Appellant's case was listed for trial, but on September 19, 1977, before trial commenced, the court ordered appellant to undergo competency testing at Philadelphia State Hospital pursuant to section 402(b) of the Mental Health and Mental Retardation Act of October 20, 1966, P.L. 96, art. IV, § 402(b), 50 P.S. § 4402(b). From October 21, 1977, until December 21, 1977, a period of 93 days, appellant was incompetent to stand trial and committed to a mental health facility for treatment. The court reviewed appellant's case on December 21, found appellant competent to stand trial, but concluded that appellant required hospitalization pending trial. Appellant's condition remained stable a period of 82 days until March 13, 1978. This period of 82 days was the first of two disputed periods when appellant was competent, but committed. On March 13, the court again found appellant incompetent and recommitted him for further evaluation. From March 13 until June 21, 1978, a period of 100 days, appellant continued to be incompetent to participate in his trial. It is agreed that this 100 day period was also excludible from the runtime of Rule 1100.
On June 21, 1978, the court found appellant competent for the second time. The court, as before, determined that appellant required hospitalization during trial and thus, recommitted appellant for ninety days under section 405 of the Mental Health Act, 50 P.S. § 4405. There was no change in appellant's condition during the 130 days between June 21 and the trial date, November 2, 1978.
[ 283 Pa. Super. Page 373]
On July 27, 1978, the court granted the Commonwealth an extension of the runtime of the Rule until "105 days after [appellant's] release." The unavailability of a Commonwealth witness on September 9, 1978, resulted in the postponement of trial. Appellant was recommitted for an additional ninety days. On October 11, 1978, appellant filed a petition to dismiss all charges pursuant to Rule 1100, which the court denied on October 27, 1978.
On November 2, 1978, appellant's case was called for trial. The court, sitting without jury, convicted appellant of aggravated assault and possession of an instrument of crime. The court imposed sentence of two to five years imprisonment on the aggravated assault conviction and a consecutive term of three years probation on the ...