No. 2540 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Bucks County at No. 564 of 1980.
Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellant.
Susan Flynn, Assistant Public Defender, Doylestown, for appellee.
Hester, Cavanaugh and DiSalle, JJ. DiSalle, J., did not participate in the consideration or decision of this case.
[ 304 Pa. Super. Page 126]
The only appellate issue is the correctness of the trial court's order dismissing the charges under Pa.R.Crim.P. 1100.
The defendant-appellee, Barry Schwartz, was arrested on August 29, 1979, following an allegation that he had pointed a shotgun at another individual, threatening to shoot him. The complaint was dated the day of the arrest, and resulted in Schwartz being confined until October 1, 1979, when released on his own recognizance [ROR]. Four preliminary hearings were scheduled at various times. The Commonwealth concedes that the first sixty-one days after the issuance of the complaint are chargeable to it but would exclude the period beginning with an October 29th scheduled preliminary hearing when Schwartz, then on release, failed to appear. An alias warrant was issued on that date and the police went to the defendant's home and were informed by his mother that he had gone to California. At least four other attempts were made to contact the defendant but the
[ 304 Pa. Super. Page 127]
police were refused admittance and his mother again told them he was not there. Defendant was not seen by the police on routine patrols but they did receive anonymous phone calls to the effect that Schwartz was in fact at home or nearby.
Finally, the police returned the warrant to the district justice on February 26, 1980. Schwartz was declared a fugitive and the case sent to the Court of Common Pleas. The original Rule 1100 run date, 180 days from the date of filing the complaint, had expired on February 24, 1980.
Some three months thereafter, on May 30, 1980, the district attorney filed for leave to file an information without preliminary hearing, which was granted. The petition was accompanied by an affidavit that the defendant could not be located. Arraignment was listed for June 14, 1980, and there being no appearance by or for defendant a bench warrant issued. On July 24th Schwartz voluntarily appeared for a bench warrant hearing and was purged of contempt. Eventually, following a hearing, a defense motion to dismiss pursuant to Pa.R.Crim.P. 1100 was granted. The Commonwealth appeals.
Pa.R.Crim.P., Rule 1100(d) provides: "In determining the period for commencement of trial, there shall be excluded therefrom: (3) such period of delay at any stage of the proceedings as results from: (i) the unavailability of the defendant or his attorney."
The essence of the decision below is that because after an arrest the Commonwealth has the power (and obligation) to proceed without the defendant, the delay of the police in returning the warrant until after the running of 180 days, rather than the fugitive status of the defendant, was the cause of the failure to schedule the case for trial within the 180 day period running from the filing of the complaint; that review of the case authority indicated to the court that exclusion of periods of unavailability for preliminary proceedings results only in these instances where the Commonwealth's ability and ...