No. 737 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 420-432 December Term, 1977
Robert I. Segal, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Cirillo and Hoffman, JJ.*fn* Cirillo, J., files concurring opinion.
[ 302 Pa. Super. Page 52]
On August 14, 1978, Ulysses Gilliam, appellant, was convicted at a bench trial of robbery, criminal conspiracy, simple assault, and possession of an instrument of crime. Post-verdict motions were filed and denied. Gilliam was sentenced to concurrent terms of imprisonment of four to ten years for robbery, four to ten years for criminal conspiracy, one to two years for simple assault, and two to five years for possession of an instrument of crime.*fn1 Gilliam appeals, contending the Commonwealth failed to bring him to trial pursuant to Pennsylvania Rule of Criminal Procedure 1100, and that, accordingly, he should be discharged. We affirm the decision of the trial court.
Gilliam and his co-defendant, Bernard Carr, had a complaint filed against them on November 16, 1977. Thus, under Rule 1100, trial was to commence by May 14, 1978. On January 12, 1978, trial was scheduled to begin. The Commonwealth, Gilliam and defense counsel all appeared, however, defense counsel requested a continuance to enable the defense to obtain the notes of testimony from the
[ 302 Pa. Super. Page 53]
preliminary hearing. A continuance was granted. Trial was set for February 22, 1978. On February 22, 1978, Gilliam appeared for trial but his counsel did not. The court continued the case until March 21, 1978.
On March 21, 1978, Gilliam's and Carr's cases were listed to be tried jointly. A pretrial hearing on Carr's motion to suppress evidence was heard before the trial court. The suppression motions were denied, however, the suppression hearing judge recused himself, sua sponte, from trial. Trial was then set for April 19, 1978. On April 19, 1978, Gilliam and Carr both failed to appear for trial because they were on trial elsewhere and accordingly unavailable. A new trial date was set for May 11, 1978. On May 11, 1978, the complainant failed to appear and a new trial date was set for June 22, 1978. The next day, May 12, 1978, the Commonwealth filed a petition for an extension under Rule 1100(c).*fn2 On June 9, 1978, the trial court granted an extension and set a new trial date of June 22, 1978. On June 22, 1978, Gilliam was on trial elsewhere and accordingly unavailable. A Rule 1100(c) petition requesting an extension was timely filed on June 23, 1978, and that petition was granted after a hearing held on July 27, 1978. A new trial date was set for August 14, 1978. Trial commenced and ended on August 14, 1978.
Gilliam contends the Commonwealth did not take reasonable steps to assure the complainant would appear on May 11, 1978 and that, therefore, the trial court erred in granting an extension on June 9, 1978. The record disclosed that on May 2, 1978, the Commonwealth attempted to serve a subpoena
[ 302 Pa. Super. Page 54]
upon the complainant. Copies of the subpoena were left at every known ...