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filed: January 23, 1981.


No. 621 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, March Session 1978, Nos. 1517-1518.


Nancy Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Mary Willmann, Assistant Public Defender, Philadelphia, for appellee.

Hester, Wickersham and Lipez, JJ.

Author: Lipez

[ 284 Pa. Super. Page 127]

Appellee was found guilty, after a non-jury trial, of simple assault*fn1 and robbery.*fn2 The trial court granted appellee's motion in arrest of judgment on the grounds that his constitutional right to a "speedy trial," as delineated by Pa.R.Crim.P. 1100,*fn3 was violated. The Commonwealth appeals, and we reverse.

The armed robbery with which appellee was charged was committed on August 31, 1976. Following is a chronology, taken from the record, of the events relevant to this appeal:

1 September 1976 Appellee was arrested in Washington, D.C.,

     on charges unrelated to the instant case.

14 September 1976 Detective Robert Groat, of the District of

Columbia Metropolitan Police Department,

     informed the Philadelphia

     police, by telephone,

     that, on the basis of the evidence

     seized when appellee was arrested, he

(Groat) suspected appellee's involvement

     with the Philadelphia robbery of 31 August.

13 December 1977 The Commonwealth of Pennsylvania formally

     requested custody of appellee under the

Interstate Agreement on Detainers.*fn4

13 October 1976 Appellee told Detective Groat that he had

     committed the Philadelphia robbery.

The Philadelphia police informed

     the Philadelphia

District Attorney's Office that

     appellee was in custody in Washington.

Richard di Benedetto, in charge of the

     district attorney's Extradition

Unit, telephoned

Detective Groat and was told that

     appellee's trial (on charges arising from

     crimes committed in Washington) had not

     yet been scheduled. Detective Groat

     promised to advise Mr. di Benedetto as soon

     as the date was set.

14 October 1976 A criminal complaint was filed against

     appellee in Philadelphia, charging him with

     the above-mentioned robbery.

13 December 1976 Extradition Unit staff members telephoned

28 December 1976 the office of the United States Attorney

     and for the District of Columbia and were

21 April 1977 advised that no date had yet been set for

     appellee's trial.

4 May 1977 Assistant U.S. Attorney Edward McGuire

     advised the District Attorney's office that:

1) appellee had been indicted in Washington

     on 9 February 1977; 2) since he had

     not yet been tried, Washington would not

     allow extradition to Pennsylvania; and

3) extradition would not have been permitted

     at any time since 1 September 1976

(the date of appellee's arrest

     in Washington).

9 September 1977 Assistant U.S. Attorney Richard Saltzman

     informed the District Attorney's office that

     appellee had pled guilty to the Washington

     charges on 25 August 1977, and that

     sentencing had been set for 26 September


28 September 1977 The District Attorney's office was informed

     that sentencing had been postponed to 5

December 1977 because of the commitment

     of appellee to the Lorton, Va., Youth

Center for a sixty day evaluation period.

5 December 1977 Appellee was sentenced, in Washington, to

     an indeterminate term of imprisonment

     with a maximum of eight years.

23 December 1977 The appropriate executive authority in the

District of Columbia advised Mr. di Benedetto

     by letter that the request for custody

     would be granted.

January 1978 Delbert Jackson, Director of the Washington

Department of Corrections, advised

Mr. di Benedetto by letter that appellee

     had been transferred to the federal prison

     in Petersburg, Virginia, on 29 December

1977. Mr. di Benedetto then telephoned

     the Petersburg prison and confirmed that

     the Detainer Agreement forms had been

     forwarded there. Mr. di Benedetto then

     sent additional necessary forms to the

Virginia prison.

31 January 1978 Appellee was returned to Pennsylvania.

23 May 1978 Appellee was tried and found guilty of the

     charges arising from the crimes of 31

August 1976.

[ 284 Pa. Super. Page 129]

The Court below, Smith, J., denied appellee's pretrial petition, filed pursuant to Pa.R.Crim.P. 1100(f),*fn5 to dismiss the charges, but the trial court, Lord, J., arrested judgment, concluding that the Commonwealth had not diligently attempted to secure appellee's return to Pennsylvania.

Since Rule 1100 requires commencement of the trial of a criminal defendant within 180 days of filing a complaint against him, and since, in the case before us, appellee was tried more than nineteen months after the complaint's filing, his discharge from criminal liability must be sustained, unless the delay beyond the Rule's limit be justified by an order granting an extension of time, or unless sufficient time as would allow the conclusion that the trial began, in law, before the expiration of the mandated period be excluded, because of appellee's unavailability, from the calculation of the final day. See Commonwealth v. Davis, 261 Pa. Super. 204, 209,

[ 284 Pa. Super. Page 130395]

A.2d 1388, 1390 (1978). The Commonwealth, in the instant case, filed no petition to extend; they contend that appellee was unavailable for trial from 1 September 1976 to 31 January 1978. We agree.

Pa.R.Crim.P. 1100(d) provides, in relevant part:

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 . . . .

When a criminal defendant is incarcerated in another jurisdiction, and the Commonwealth, notwithstanding its diligence in attempting to do so, cannot secure his return, we may conclude that the defendant has been unavailable. "[T]he Commonwealth has the burden of proving the requisites of Section (d) in order to avail itself of an exclusion and must do so by a preponderance of the evidence. [Citation omitted.] Furthermore, 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, 472 Pa. 553, 564, 372 A.2d 826, 831 (1977); see Commonwealth v. Davis, supra, 261 Pa. Super. at 209-10, 395 A.2d at 1390.

It has been held that

[m]ere incarceration in another jurisdiction does not make defendant unavailable. Appellant will be considered unavailable only for the period of time during which his presence could not be secured despite due diligence by the Commonwealth. Commonwealth v. Richbough, 246 Pa. Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Kovacs, 250 Pa. Super. 66, 378 A.2d 455 (1977). "There is no question, therefore, that the duty imposed on the Commonwealth by Rule 1100 to bring defendant to trial within the prescribed period is not affected by the fact of his incarceration elsewhere . . . ." Commonwealth v. McCafferty, 242 Pa. Super. 218, 224, 363 A.2d 1239, 1241 (1976).

[ 284 Pa. Super. Page 131]

    might be returned under certain conditions.*fn9 The United States Attorney's communication of 4 May 1977, advising the District Attorney that Washington would not permit appellee's extradition to Pennsylvania until he had been sentenced, and that, for that reason, any request for custody made before 4 May would not have been honored, indicates that initiation of procedures under the UCEA would have been futile.

The facts of this case are quite similar to those of Commonwealth v. Emmett, 274 Pa. Super. 23, 417 A.2d 1232 (1979). In that case, the defendants committed crimes in Pennsylvania, and were later arrested in connection with other crimes in Maryland. This court affirmed the trial court's exclusion, from the Rule 1100 period, of the time between the arrest in Maryland and sentencing on the Maryland charges on the basis of a record showing five communications between appropriate authorities in the two jurisdictions, most of which contacts having been to the effect that Maryland would not allow removal of the defendants to Pennsylvania until they had been sentenced.

Although the issue in Commonwealth v. Hinton, 269 Pa. Super. 43, 409 A.2d 54 (1979), was whether the defendant could have been arrested sooner than he was, the substance of the following statement of this court in that case is not limited to arrests, and may be applied to the matter at hand:

[T]he test is not a venture into hindsight reasoning as to whether, if certain individuals had been contacted, or other things done, an arrest would probably have been made. The matters of availability and due diligence must be judged by what was done by the authorities rather than [by] what was not done. The standard of due diligence demands only reasonable efforts.

Id., 269 Pa. Super. at 50, 409 A.2d at 57-58 (emphasis in original). We think that it is abundantly clear that the Commonwealth did use such reasonable efforts.

[ 284 Pa. Super. Page 133]

The order of the court below is reversed; the judgment is reinstated; and the cause is remanded for imposition of sentence.

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