No. 1354 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at Nos. 220-221, Sept. Session, 1977.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, P. J., and Watkins and Hoffman, JJ. Hoffman, J., files a dissenting opinion.
[ 296 Pa. Super. Page 361]
This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, and involves defendant's claim that the charges against him should have been dismissed because the Commonwealth failed to demonstrate "due diligence" in bringing the defendant to trial at the hearing held on the Commonwealth's petition to extend the time for trial.
The defendant was arrested and charged with burglary and possessing instruments of crime on July 26, 1977. He was convicted of said crimes on February 10, 1977 after a non-jury trial. He then took this appeal.
The mechanical run date of 180 days pursuant to Rule 1100 of the Pa.Rules of Criminal Procedure was January 22, 1978. Because that date fell on a Sunday the time for trial was extended to Monday, January 23, 1978. Rule 1100 Pa.Rules Crim.Pro. On October 26, 1977 the case was listed for trial. The defendant failed to appear on time for the trial and the case was passed. On January 23, 1978 the Commonwealth filed a timely Petition for an Extension of Time in which to bring the defendant to trial. The defendant answered said petition and filed a motion to dismiss the charges. A hearing was held thereon on February 3, 1978, after which the court granted an extension of time to the Commonwealth. Trial commenced on February 10, 1978 which was the 199th day after defendant's arrest.
The court below found that the Commonwealth had exercised due diligence in attempting to bring the defendant to trial. The Commonwealth was ready to proceed to trial on October 26, 1977, November 17, 1977 and December 14, 1977 but the case was not reached on any of those dates. The court also found that the defendant's tardiness in appearing for trial on October 26, 1977 resulted in a 22 day delay which is attributable to the defendant. Deducting the 22 day delay caused by the defendant from the 199 days brings the Commonwealth within the 180 day limit. Thus, even if the Commonwealth failed to prove "due diligence" at the Rule 1100 hearing the defendant was tried within the appropriate
[ 296 Pa. Super. Page 362]
time period if the 22 days was properly deducted from the "run time".
The defendant was late on October 26, 1977 because he had been detained at a district hearing. However, the case was then re-listed for trial on November 17, 1977. Thus, the defendant's "unavailability" on October 26, 1977 resulted in the delay. The unavailability of the defendant excludes the delay occasioned thereby from the running of the rule. Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977). Section 1100(d)(1) of the rule requires the exclusion of the period of delay resulting from the unavailability of the defendant or his counsel. Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979). The court below found that the defendant's unavailability on October 26, 1977 resulted in a 22 day delay. Unlike the situation in Morgan, the unavailability of the defendant in our case did result in delaying the schedule of the proceedings. The defendant would have us hold that defendant's unavailability on October 26, 1977 resulted in only a one day delay, at most, which is attributable to the defendant. The defendant argues that Rule 1100(d)(1) provides that the only delay which can be attributed to the defendant is the actual period of time that he was unavailable. We do not agree. The Rule specifically excludes from the "run time" "such period of delay at any stage of the proceedings as results from : (1) the unavailability of the defendant or his attorney."*fn1 (Emphasis ours) It is obvious that in many cases the defendant, by his unavailability, can occasion a delay which is much greater than the actual time of his unavailability. The Rule charges this delay to the defendant.
Since the court below correctly attributed the 22 day delay to the defendant and because the case was tried on the 199th day, we hold that the court below did not err in dismissing ...