No. 825 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8106667.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
Michael James Healey, Pittsburgh, for appellee.
Rowley, Popovich and Hoffman, JJ. Popovich, J., files a concurring opinion. Rowley, J., files a dissenting opinion.
[ 322 Pa. Super. Page 318]
The Commonwealth contends that the lower court erred in discharging appellee because he was denied a speedy trial guaranteed him by the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101, Art. IV(c). We disagree and, accordingly, affirm.
On November 9, 1981, appellee was brought to Pennsylvania to face a conspiracy charge. Pursuant to the Agreement on Detainers, the Commonwealth was required to bring appellee to trial within 120 days, or before March 9,
[ 322 Pa. Super. Page 3191982]
. On December 10, 1981, the Commonwealth petitioned to consolidate appellee's case with those of two co-defendants and inadvertently listed appellee's rundate as April 4, 1982.*fn1 On December 17, the lower court set a tentative trial date of January 19, 1982. However, on December 28, the lower court held a preliminary hearing and subsequently granted appellee thirty days in which to file pre-trial motions. On January 19, the Commonwealth's motion to consolidate was denied because the charges against appellee's co-defendants were dismissed. The lower court denied the Commonwealth's request to set the trial for January 29, just one day after the termination of appellee's thirty day period for filing pre-trial motions, noting the request was unreasonable and gave the court no time to consider any motions filed. The lower court, relying on the Commonwealth's original, albeit mistaken, rundate, then scheduled the trial for March 30.*fn2 On March 12, appellee filed a motion to dismiss because he had not been tried within the requisite 120 days. On March 16 the Commonwealth, having renewed charges against the co-defendants, again petitioned for consolidation. The petition was granted, but trial was postponed until May 3 because of the unavailability of counsel for one co-defendant. On March 31, the Commonwealth petitioned to extend the time for trial, again, mistakenly pursuant to Pa.R.Crim.P. 1100. Finally, on July 9, the lower court, finding that appellee had not been tried within 120 days of his entering Allegheny County, dismissed the conspiracy charge. The Commonwealth appeals his dismissal.
The Detainer Agreement provides:
[ 322 Pa. Super. Page 320]
In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
42 Pa.C.S.A. § 9101 Art. IV(c). The Act also states that:
In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, ...