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filed: September 26, 1980.


No. 778 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lackawana County, Criminal Div., Nos. 517(A) & (B) of 1978.


James E. O'Brien, Jr., Assistant Public Defender, Scranton, for appellant.

Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Hester, J., files a dissenting opinion.

Author: Spaeth

[ 282 Pa. Super. Page 379]

Appellant was convicted of robbery, theft and recklessly endangering another person. He argues on this appeal that he should be discharged because his right to a speedy trial

[ 282 Pa. Super. Page 380]

    under Pa.R.Crim.P. 1100, 19 P.S. Appendix, has been violated.

On February 15, 1978, a criminal complaint issued against appellant, charging him with the crimes just listed. Therefore, under Pa.R.Crim.P. 1100(a), the Commonwealth had until August 14, 1978,*fn1 or one hundred eighty days later, to commence appellant's trial. Trial was scheduled for May 30, 1978. However, on that date, appellant appeared without counsel and trial was continued.*fn2 On June 1, the Commonwealth filed a petition pursuant to Pa.R.Crim.P. 1100(c) for an extension of time to commence trial, and the lower court granted a rule to show cause why the petition should not be granted. The Rule was returnable on June 9, and a hearing on the petition, if deemed necessary, was scheduled for June 14. Copies of the petition were served on appellant, the public defender, and the private counsel who represented appellant at his preliminary hearing. No answer to the petition was filed and no hearing was held. Moreover, no order on the petition -- either granting or denying it -- was entered by the lower court. On September 21, appellant filed a motion pursuant to Pa.R.Crim.P. 1100(f) for dismissal of the charges against him on the ground that the Commonwealth had failed to commence trial within the period prescribed by Rule 1100. The Commonwealth filed an answer, and a hearing on the petition was held on September 27. At the conclusion of the hearing, the lower court found that appellant was unavailable for trial on May 30, that because criminal court terms were not scheduled during the summer months the next available trial date after May 30 was September 25, and that although special out-of-term criminal

[ 282 Pa. Super. Page 381]

    trials had been held during the summer months, appellant's trial could not have been held prior to September 25 because "all of the courts during this past summer were busy with matters." On these findings, the lower court denied appellant's motion to dismiss. The lower court also stated that it would grant the Commonwealth's "petition to extend the time of trial until today or tomorrow or Friday during this week, whenever there's a court available for trial of this case." Although the lower court did not explicitly state that the petition being granted was the one the Commonwealth filed on June 1, we must assume that this was the petition the court was granting as the Commonwealth had filed no other. The record shows no request by the Commonwealth either before or at the hearing for a ruling by the lower court on its June 1 petition.*fn3 The next day, September 28, the Commonwealth filed its second petition for an extension of time, alleging that it could not try appellant on or before September 29 because "there were no trial judges available and no courtrooms available since all the judges and courtrooms were occupied with other cases." Appellant opposed an extension but admitted the unavailability of courtrooms and a trial judge. On October 26, the lower court, without a hearing, granted an extension of time until the next criminal court term beginning November 27. Appellant was tried on December 1, 1978.

The Commonwealth argues that all of the period from May 1 until September 25 should be excluded in determining the timeliness of appellant's trial. The Commonwealth reasons that appellant was unavailable during this period within the meaning of Pa.R.Crim.P. 1100(d)(1) because he appeared for trial on May 30 without counsel and the next available trial date was September 25. While we find that

[ 282 Pa. Super. Page 382]

    appellant was unavailable for trial on May 30 and for a reasonable period thereafter until a public defender could be appointed to represent him, see, e. g., Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977); Commonwealth v. Smith, 262 Pa. Super. 258, 396 A.2d 744 (1978),*fn4 it may not be said that appellant was unavailable for the entire period from May 30 until September 25. In Commonwealth v. Goodman, 260 Pa. Super. 266, 393 A.2d 1256 (1978), this court held that a defendant who escaped from jail and was unavailable for trial until September 26, 1975, the date the Commonwealth learned his whereabouts, was nevertheless available for trial after September 26, even though the next criminal court term was not scheduled until November 12, 1975. The delay caused by the lack of a criminal court term in ...

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