No. 2795 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 811, 812, 813 May, 1980.
Michael H. Van Buskirk, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Cirillo and Johnson, JJ.
[ 311 Pa. Super. Page 74]
The appellant, Victor S. Cornish, was charged with Burglary, Criminal Trespass, Possessing an Instrument of Crime, and Attempted Theft by Unlawful Taking or Disposition on December 1, 1978. Appellant failed to appear at his preliminary hearing on December 6, 1978; consequently, a bench warrant was issued for his arrest. On March 14, 1980, the appellant was arrested and the bench warrant was withdrawn.
On May 15, 1980, the Commonwealth filed a Petition to Extend the trial run-date pursuant to Pa.R.Crim.P. 1100(c). This petition was granted and the time for commencement of trial was extended to September 6, 1980. On July 16, 1980, the Commonwealth filed a second Petition to Extend. This too was granted and trial was further extended to October 15, 1980.
Trial actually commenced on September 17, 1980; following a bench proceeding, the appellant was found guilty of all charges. Post trial motions were filed and denied. On November 18, 1980, the appellant was sentenced to two concurrent terms of imprisonment of two (2) to five (5) years on the Possessing an Instrument of Crime, Burglary, and Attempted Theft bills. A suspended sentence was issued on the Criminal Trespass bill. This appeal from the Judgment of Sentence followed.
[ 311 Pa. Super. Page 75]
With the criminal complaint being filed December 1, 1978, the mechanical run date of 180 days was May 30, 1979. The actual trial did not commence until the passage of 655 days from the filing of the complaint. Rule 1100(c)(1) empowers the prosecution with the right to apply to the court for an order extending the time for commencement of trial; however, in addition to setting forth and proving the facts in support of an extension, the Commonwealth must file said application prior to the expiration of the original period for the commencement of trial. The Commonwealth filed its application eleven and one-half months following the 180-day mechanical run date; therefore, unless enough time is excluded from the period lapsing between the filing of the complaint and the filing of the first application to extend, Rule 1100 was violated and the appellant should be discharged.
Pa.R.Crim.P. 1100(d)(3)(i) excludes that period of delay resulting from the unavailability of the defendant or his attorney. The Commonwealth maintains that the appellant was unavailable for the period commencing with his failure to appear for his preliminary hearing on December 6, 1978 and terminating with his apprehension on unrelated charges on March 14, 1980. If the Commonwealth's position is correct, the exclusion of this period of 464 days would render not only their application to extend but the actual commencement of trial in conformity with the 180-day mandate. Conversely, the appellant maintains that this 464 day period is not properly excluded due to the fact that the Commonwealth did not prove that a subpoena was duly served upon the appellant notifying him of his preliminary hearing date. The appellant concedes, however, that at the Rule 1100 hearing on July 19, 1980, the Commonwealth produced a bail document signed by him on the day of arrest and reflecting the preliminary hearing date. We primarily concern ourselves, then, with whether the appellant received proper notice of the December 6, 1978 preliminary hearing date.
[ 311 Pa. Super. Page 76]
Pa.R.Crim.P. 309(b)(1) makes reference to the manner of service; however, no guidelines for the form of notice to appear for a ...