No. 1035 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Chester County, Pennsylvania, Criminal Division, No. 1257-77.
Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellant.
Dennis D. Brogan, West Chester, for appellee.
Spaeth, Rowley and Cirillo, JJ. Spaeth, J., files a dissenting opinion.
[ 315 Pa. Super. Page 197]
This is an appeal by the Commonwealth from an Order granting appellee's Motion in Arrest of Judgment on the ground that the Commonwealth had violated Pa.R.Crim.P. 1100.
On June 24, 1977, a criminal complaint was filed in Chester County against appellee charging him with robbery, criminal conspiracy, theft, receiving stolen property, recklessly endangering another, terroristic threats, and unlawful restraint. Appellee was arrested on June 28, 1977. A preliminary hearing was held on July 22, 1977, at which appellee was granted bail and given written notice of his arraignment scheduled for August 29, 1977.*fn1 Appellee
[ 315 Pa. Super. Page 198]
failed to appear for arraignment and a bench warrant was subsequently issued on September 12, 1977. On November 2, 1977, appellee was hospitalized at St. Luke's Hospital in Philadelphia with serious injuries as a result of a "shoot-out" with the Philadelphia police. On December 8, 1977, the Commonwealth filed a Petition to Extend the time for trial. The petition was unopposed by appellee. On February 22, 1978, a ninety (90) day extension was granted to the Commonwealth. On May 3, 1978, appellee was transferred from St. Luke's Hospital to the Graterford Prison Medical Unit in Montgomery County. On May 17, 1978, the Commonwealth filed a second Petition to Extend the time for trial. On August 17, 1978, after an evidentiary hearing, the Commonwealth's second petition was granted and the time for trial was extended to August 28, 1978. This second extension is the subject of this appeal. Trial began on August 28, 1978. Appellee was convicted of two counts of robbery. Post-trial motions resulted in the granting of appellee's Motion in Arrest in Judgment by the court en banc. This appeal followed.
Four issues, as stated by the Commonwealth, are raised on appeal: 1) Whether appellee waived his right to raise the Rule 1100 issue?; 2) Whether the Commonwealth must establish that it exercised due diligence in attempting to execute a bench warrant in order to qualify for exclusion of time under Rule 1100?; 3) Whether the court en banc may make findings of fact contrary to that of the hearing court? and 4) Whether the Commonwealth has exercised due diligence
[ 315 Pa. Super. Page 199]
when it tries a defendant within the time period of Rule 1100 as extended?
The Commonwealth first argues that appellee waived the Rule 1100 issue by failing to file a Motion to Dismiss prior to trial. It is undisputed that appellee opposed the second Petition to Extend, consequently, the issue has been preserved for appellate review. Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).
The Commonwealth's next three arguments deal with whether it exercised due diligence so as to justify the extension granted on August 17, 1978.
In reviewing an alleged Rule 1100 violation, all periods of delay beyond the prescribed period of 180 days must be either excluded from the computation or justified by an order granting an extension, pursuant to the terms of the rule, if the Commonwealth is to prevail. Commonwealth v. Hoffman, 255 Pa. Super. 66, 386 A.2d 138 (1978). The trial court found a total of 248 days to be excludable: they are the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, and the 183 day period from November 2, 1977 until May 3, 1978 during which appellee was hospitalized.*fn2 The trial court concluded, however, that even excluding the 248 days, appellee was brought to trial after the Rule 1100 period had expired. The court calculated that 431 days had elapsed between June 24, 1977 and August 28, 1978. Therefore, subtracting the 248 days excludable time from the 431 days, the court concluded that appellee was brought to trial 183 days after the complaint was filed. Consequently, the court went on to determine whether the Commonwealth had exercised due diligence in attempting to bring appellee to trial so as to
[ 315 Pa. Super. Page 200]
justify the extension of the date for commencement of trial to August 28, 1978. The trial court concluded that the Commonwealth had not exercised due diligence and granted appellee's Motion in Arrest of Judgment.
We agree with the trial court that the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, and the 183 day period from November 2, 1977 until May 3, 1978, during which appellee was hospitalized, were properly excluded.*fn3 Nevertheless, because our calculation of the time which elapsed between the filing of the complaint and the date of trial differs from that of the trial court, we have found no Rule 1100 violation and, therefore, reverse and remand for further proceedings.
With respect to the two excludable periods of time, we note that Rule 1100(d), pertaining to "exclusions" for periods of delay attributable to the accused or his attorney, has been held to require proof of "due diligence in order for the Commonwealth to avail itself of [the] exclusion[s]." Commonwealth v. Mitchell, 472 Pa. 553, 561, 372 A.2d 826, 830 (1977). Under Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978), however," a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself." (Emphasis added).
[ 315 Pa. Super. Page 201]
In such a situation, "the concept of due diligence . . . is misplaced in a speedy trial analysis." Id., 481 Pa. Superior at 355, 392 A.2d at 1331. Consequently, in the case at hand, the sixty-five (65) day period from August 29, 1977 until November 2, 1977 when appellee was a fugitive, was, under Cohen, properly excluded. A due diligence inquiry during that period of time would be "misplaced."
As for the 183 day period of appellee's hospitalization which extended from November 2, 1977 until May 3, 1978, such a period is excludable so long as the Commonwealth was "satisfied . . . that [appellee] was seriously ill and hospitalized." Commonwealth v. Haynes, 245 Pa. Super. 17, 21, 369 A.2d 271, 273 (1976). The Commonwealth knew that appellee had been seriously injured on November 2, 1977, in an incident involving the police which had left him with some form of paralysis. Two attempts to list appellant's case in December of 1977 and January of 1978 were striken because appellee was still hospitalized. The Commonwealth explained its understanding of the magnitude of appellee's injuries and his resulting unavailability at the February 22, 1978, hearing on its first Petition to Extend. At that hearing the attorney for the Commonwealth stated:
MISS TROIANI: Your honor, Mr. Lyles is in the hospital and it seems that he will be there for a number of months. He was shot by Philadelphia police, and, therefore, we would ask for an extension possibly until this summer because it doesn't look like he is going to be available for quite awhile.
It is obvious from that statement that the information the Commonwealth had concerning the nature of appellee's injuries led it to believe that appellee would be unavailable for trial while he was hospitalized. That belief was left unchallenged by counsel for appellee. "Due diligence" being a relative concept which varies with the circumstances of each particular case, it is our conclusion that, under the circumstances of this case, the Commonwealth exercised ...