filed: September 4, 1981.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
KEVIN DOUGLAS HENRY
No. 1880 Philadelphia, 1980, Appeal from an Order of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 3847-79.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Francis M. Walsh, Assistant Public Defender, Norristown, for appellee.
Hester, DiSalle and Montgomery, JJ.
[ 290 Pa. Super. Page 310]
This is an appeal by the Commonwealth from the lower court's dismissal of the charges against appellee, Kevin Henry, under Pa.R.Crim.P. 1100(a)(2).*fn1
On September 9, 1979, and September 13, 1979, criminal complaints were filed against appellee charging him with three burglaries and other ancillary offenses. Appellee's run dates, therefore, were March 7 and 11, 1980. On September 18, 1979, a preliminary hearing was held, and all charges were returned to court. Appellee posted bail and on the appropriate bail form gave his address as 211 Simpson Road, Ardmore, Pennsylvania. On October 31, 1979, appellee appeared in court and waived his arraignment. On December 6, 1979, at the call of the trial list, appellee's counsel stated that they were prepared for trial. In fact, appellee was incarcerated in the State of Delaware, unavailable for trial. The Commonwealth was unaware of appellee's
[ 290 Pa. Super. Page 311]
incarceration because appellee had failed to give proper notice of his new address in Delaware. Pa.R.Crim.P. 4013(c).*fn2 Not until February 6, 1980, when appellee's case was called for trial, did the Commonwealth learn of appellee's unavailability. On that date, a bench warrant was issued for appellee. On February 19, 1980, a request for temporary custody of appellee was filed with the Delaware authorities. 42 Pa.C.S.A. 9101, et seq. The next day the Commonwealth filed for and was granted an extension to commence trial 120 days from the time appellee was apprehended.*fn3 On May 1, 1980, the Commonwealth received custody of appellee. On July 24, 1980, appellee's case was called for trial. The lower court found that the Commonwealth had failed to comply with Pa.R.Crim.P. 1100 and ordered the case dismissed.
The Commonwealth contends that although 319 days elapsed between the date when the first complaint was filed against appellee and the date of his trial, the proceedings were nevertheless timely because appellee was unavailable for trial for a period of 147 days. Pa.R.Crim.P. 1100(d)(1).*fn4 We agree. Although appellee was not available for trial at the call of the list on December 6, 1979, his counsel knowingly
[ 290 Pa. Super. Page 312]
misrepresented that appellee was available.*fn5 Had the Commonwealth been informed at that time that appellee was incarcerated in Delaware, it could have begun proceedings to have appellee returned to the Commonwealth. Because the Commonwealth was misinformed, the period between the call of the list and appellee's return to Montgomery County may not be charged against the Commonwealth. Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978).
We find, therefore, that appellee was unavailable for trial from December 6, 1979 until May 1, 1980, a total of 147 days. It follows, therefore, that appellee was brought to trial 172 days after the first complaint was filed against him, which is in compliance with Pa.R.Crim.P. 1100.
Order reversed and case remanded for trial.