No. 2022 Philadelphia, 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal Division at No. 4329-79.
Frederick W. McBrien, Norristown, for appellant.
Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wieand, McEwen and Popovich, JJ.
[ 306 Pa. Super. Page 162]
On October 16, 1980, appellant, William F. Ryan, was found guilty of criminal attempt and criminal conspiracy for arranging a sale of methamphetamine (speed) in May, 1979. Post-trial motions were timely filed and denied. Thereafter, appellant was sentenced to a period of incarceration of three to ten years. This appeal followed. We reverse.
On appeal, appellant raises numerous allegations of error by the trial court. Because of our view of the case, we need only address appellant's contention that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated.
[ 306 Pa. Super. Page 163]
To respond to appellant's contention, we must review in detail the procedural history of the case. On September 19, 1979, an arrest warrant was sworn out against appellant charging him with criminal attempt,*fn1 criminal solicitation,*fn2 criminal conspiracy*fn3 and a violation of the Controlled Substance, Device and Cosmetic Act.*fn4 Appellant was arrested on October 1, 1979, and was formally arraigned on November 23, 1979. On or about December 1, 1979, appellant was taken into custody by a member of the Montgomery County Detective's office and turned over to federal authorities to commence serving a federal prison sentence. Sometime between December 14, 1979, and December 27, 1979, the Commonwealth first learned that the appellant was finally lodged in the Federal Correctional Institution at Petersburg, Virginia.
Appellant's trial on the Montgomery County charges was scheduled to commence on January 9, 1980. However, it was not until January 23, 1980, that the District Attorney of Montgomery County filed a request for temporary custody, under the Interstate Agreement on Detainers Act,*fn5 with the warden of the Virginia prison. The 180th day from the filing of the complaint was March 17, 1980. On February 26, 1980, the Commonwealth filed a petition for extension of time to commence trial on the basis of appellant's continued incarceration in a federal facility. Appellant filed an answer and new matter to the petition averring a lack of due diligence on behalf of the Commonwealth to effectuate his transfer. By order of March 6, 1980, Judge Smillie granted the Commonwealth's petition and directed that trial commence no later than September 1, 1980. On May 13, 1980, an offer of temporary custody of appellant was sent to the Montgomery County District Attorney's office. Appellant's
[ 306 Pa. Super. Page 164]
trial was rescheduled to commence June 9, 1980. On or about June 2, 1980 members of the Montgomery County Detective's office traveled to Virginia for the purpose of returning appellant to Montgomery County. Upon arriving in Virginia, the detectives were advised that appellant had already been returned to Pennsylvania in connection with a federal matter. According to counsel for appellant, appellant had been taken by the federal authorities to Philadelphia on unrelated federal charges sometime during the end of May, 1980. At that time, and while still in Philadelphia, appellant suffered a heart attack.
As of June 19, 1980, appellant had recovered from his heart attack and was lodged in the Montgomery County Prison. Appellant's trial had been rescheduled for July 14, 1980. On that date, the Commonwealth made a motion to postpone the trial for one week because a key Commonwealth witness was on vacation. This motion was granted and the trial was rescheduled for July 21, 1980. On July 18, 1980, defense counsel filed a motion to dismiss under Rule 1100(f). On July 31, Judge Davenport ordered that any further consideration of appellant's motion to dismiss be deferred until the time of trial. Trial did not take place on July 21 because the assistant district attorney assigned to the Ryan case had to try another case for which July 21 was the 180th day for Rule 1100. On September 2, September 1 being Labor Day, the Commonwealth filed another petition for extension of time for commencing trial. The appellant filed an answer averring a lack of due diligence on behalf of the Commonwealth. The matter was again scheduled before Judge Smilie and by order of September 11, 1980, the Commonwealth was given an additional 60 days to commence appellant's trial. Trial did commence on October 7, ...