Francis M. Socha, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Wieand, Cirillo and Popovich, JJ.
[ 308 Pa. Super. Page 426]
George Pichini was tried non-jury and convicted of robbery. On direct appeal, the sole issue is whether he was tried timely within the requirements of Pa.R.Crim.P. 1100.
[ 308 Pa. Super. Page 427]
We conclude that he was not. Therefore, we reverse the judgment of sentence and order his discharge.
The facts are not in dispute. A complaint was filed against appellant on September 16, 1980, at a time when he was incarcerated in Mifflin County. By computation, the run date on the Dauphin County charge was March 16, 1981.*fn1 Appellant was preliminarily arraigned on the robbery charge on October 1, 1981, in Dauphin County. At that time he waived preliminary hearing and agreed that the charge should be returned to court. He was returned to the Mifflin County Prison on the following day. From the day he was returned to the Mifflin County Prison to the date of appellant's scheduled arraignment on February 11, 1981, the representatives of the Commonwealth had no contact with him. He failed to appear for arraignment on February 11, 1981, because unbeknownst to the District Attorney's office he had been transferred to and was incarcerated at the State Correctional Institution at Camp Hill. A bench warrant was issued and served on appellant the same day. Even so, appellant was not arraigned until February 27, 1981, when he entered a plea of not guilty, requested trial by jury and was told that his trial date would be March 23, 1981. Because this date was seven days beyond the run date of March 16, 1981, the Commonwealth filed a petition under Pa.R.Crim.P. 1100(c) to extend the time within which to commence trial. A hearing was set for the time of trial on March 23, 1981. Prior to that date appellant filed an answer to the Commonwealth's petition and moved for dismissal. On March 23, 1981, after hearing, the court granted the Commonwealth's request for an extension and denied appellant's petition to dismiss. Appellant then waived trial by jury, and a non-jury trial was held on March 24, 1981.
The record discloses that between October 2, 1980 and February 11, 1981, there was no communication whatsoever between the representatives of the Commonwealth and the appellant. During this period, appellant's case was
[ 308 Pa. Super. Page 428]
not listed for arraignment or trial, and the Commonwealth made no other effort to process the criminal action against appellant. Notices of the February 11th arraignment were sent to appellant at the Dauphin County Prison, at the Mifflin County Prison and at an address appearing on the complaint. All were undelivered, for appellant was then incarcerated in the State Correctional Institution at Camp Hill.
In fact, appellant was in prison continuously during this entire period. He had been transferred on October 8, 1980 to the State Correctional Institution at Huntingdon, and on January 14, 1981, he was sent to Camp Hill to serve a sentence imposed by the court in Huntingdon County. He remained at Camp Hill until he was found by the Commonwealth after he failed to appear for arraignment on February 11, 1981. During this period, his prison records disclose, he made seven court appearances in Mifflin and Huntingdon Counties involving a total of thirteen days.
The Commonwealth failed to show that it was entitled to exclude any time under Pa.R.Crim.P. 1100(d)(3)(i). This rule excludes from the computation of the 180 days any period of delay resulting from "the unavailability of the defendant." The fact of appellant's continuous incarceration did not alone establish unavailability. He could be considered unavailable only for that period of time during which his presence could not be secured despite due diligence by the Commonwealth. Commonwealth v. Ryan, 306 Pa. Super. 159, 168, 452 A.2d 264, 268 (1982); Commonwealth v. Heath, 288 Pa. Super. 119, 125, 431 A.2d 317, 319 (1981); Commonwealth v. Williams, 284 Pa. Super. 125, 130, 425 A.2d 451, 454 (1981); Commonwealth v. Smith, 274 Pa. Super. 229, 232, 418 A.2d 380, 382 (1980); Commonwealth v. Bass, 260 Pa. Super. 62, 66, 393 A.2d 1012, 1014-1015 (1978); Commonwealth v. Clark, 256 Pa. Super. 456, 463, ...