December 29, 1980
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
FLOYD RODGERS APPELLANT
No. 2205 October Term, 1979 Appeal from the Judgment of Sentence imposed October 16, 1979 of the Court of Common Pleas, Montgomery County, at No. 141-79, Criminal.
Before Hester, Cavanaugh and Van Der Voort, JJ. Hester, J., files a concurring opinion, in which Van der Voort, J. joins.
Judgment of Sentence affirmed.
HESTER, J., files a concurring opinion, in which VAN der VOORT, J. joins.
I concur in the opinion of Judge Cavanaugh. However, I hold it to be the law of Pennsylvania that delay caused by the unavailability of a defendant or his counsel is automatically excluded from the time limits created by Rule 1100. See Commonwealth v. Bussey, Pa. , 404 A.2d 1309 (1979) wherein our Supreme Court held (at page 1311):
"Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977), is controlling as to this period. In Commonwealth v. Millhouse, supra, the accused who was not indigent presented himself for a preliminary proceeding without counsel and did not waive his right to counsel. For this reason, the proceeding was delayed. We concluded that, under such circumstances the accused was unavailable within the meaning of Pa.R.Crim.P. 1100(d)(1) and that the period of delay resulting from the unavailability, i.e. until counsel entered an appearance, was to be automatically excluded.(Emphasis added)
Instantly, Bussey appeared at a preliminary proceeding without counsel, did not waive his right to counsel, and was financially capable of retaining private counsel. The delay in the proceeding was the result of these circumstances and counsel did not enter into the case until January 18, 1974. Hence, Bussey was unavailable for this period, and it must be excluded pursuant to Pa.R.Crim.P. 1100(d)(1)."
The Supreme Court reversed our court in Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977) wherein it held on page 1276:
The Commonwealth argues that the Superior Court erred in failing to exclude that period of delay resulting from the appellee being unrepresented by counsel from the computation under Rule 1100(a)(1) (270 day rule). We agree.
Pa.R.Crim.P. 1100(d)(1) provides:
"(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
"(1) the unavailability of the defendant or his attorney;"
 The actual "period of delay" at any stage of the proceedings attributable to the "unavailability of the defendant or his attorney" is an automatic exclusion from the time limits of either Pa.R.Crim.P. 1100(a)(1)--(270 day rule or (a)(3)--180 day rule. See Commonwealth v. Shelton, Pa. , 364 A.2d 694 (1976).
 We are of the opinion that a defendant who has not aived his right to counsel is "unavailable" when that defendant appears for proceedings in connection with his case without defense counsel and such defendant is financially capable of retaining counsel. If the "unavailability" results in an actual delay in the proceedings, that delay is automatically excluded.... (Emphasis added)
In view of the foregoing, it was not necessary for the District Attorney to petition for an extension. The delays were caused by the unavailability of defense counsel. The period of that delay was automatically excluded from the 180 days set forth in the Rule.
Van der Voort, J. joins.
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