No. 655 Philadelphia, 1980, Appeal from the Order of February 25, 1980, Court of Common Pleas, Lehigh County, Pennsylvania, Criminal Division, No. 1042 of 1979.
William H. Platt, District Attorney, Allentown, for Commonwealth, appellant.
W. Hamlin Neely, Allentown, for appellee.
Cavanaugh, Johnson and Lipez, JJ.
[ 294 Pa. Super. Page 483]
The Commonwealth appeals from the order of February 25, 1980, that discharged Appellee because his Rule 1100 rights*fn1 had been violated. For the following reasons, we reverse and remand.
The complaint in the instant case was filed on April 5, 1979; but trial was not scheduled to commence until January 22, 1980 -- a period of 292 days. Unless 112 days could be excluded under Rule 1100(d),*fn2 Appellee's Rule 1100 rights
[ 294 Pa. Super. Page 484]
were clearly violated since trial was not commenced within 180 days after the complaint was filed.
The trial judge held that two periods were excludable under Rule 1100(d). On May 17, 1979, a magistrate's hearing was continued until June 30, 1979, to enable Appellee to obtain counsel. The trial court held that only 14 days of this 44-day period were excludable under Rule 1100(d)(2). Since Appellee was financially capable of retaining counsel, this entire 44-day period is excludable under Rule 1100(d)(1). See Commonwealth v. Millhouse, 470 Pa. 512, 517-518, 368 A.2d 1273, 1276 (1977); Commonwealth v. Smith, 262 Pa. Super.Ct. 258, 263-264, 396 A.2d 744, 746 (1978). On June 30, 1979, the magistrate's hearing was again continued at the request of Appellee's counsel, whose vacation extended from June 26, 1979, until mid-July. The issue in this case involves the trial court's interpretation of the circumstances surrounding this second period of excludable time. We proceed to consider this issue.
On June 19, 1979, defense counsel wrote to the magistrate, informing him that the prosecutor had agreed to continue the hearing that had been scheduled to commence before the magistrate on June 30, 1979. The following portion of defense counsel's letter is relevant to our discussion:
Since I am going on vacation commencing June 26, 1979 and will not return until mid-July, it appears that the hearing cannot be scheduled until sometime during the month of August. I explained this to Attorney Hudak, [assistant prosecutor] who is agreeable to this chronology.
In the meantime, you should note that the continuance was brought about upon my request and that I will waive the applicability of the Pennsylvania Rule of Criminal Procedure ...