No. 81-3-425, Appeal from the Order of the Superior Court dated September 26, 1980, at October Term, 1978, No. 778, reversing the Order of the Court of Common Pleas of Lackawanna County, Criminal Division, dated March 6, 1979, as of December Session, 1978, Nos. 517 (a & b), granting the Defendant's Motion in Arrest of Judgment and Discharging the the Defendant,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a dissenting opinion, in which Roberts, C.j., joins.
On February 15, 1978, a complaint was filed against appellee Lloyd L. Manley, charging him with burglary, robbery, recklessly endangering other persons and theft by unlawful taking. The charges arose out of the January 10, 1978 hold-up of tavern owners Anthony and Leo Boyarsky. During the hold-up, the victims were beaten, threatened at gunpoint and bound, and $41,000 was taken. Mr. Manley was convicted by a jury and sentenced to a term of imprisonment of ten to twenty years on the robbery charge. On appeal, a three judge panel of Superior Court, 282 Pa. Super. 376, 422 A.2d 1340, discharged appellee on the ground he was not tried within 180 days of the complaint as provided by Pa.R.Crim.P. 1100. We granted the Commonwealth's petition for allowance of appeal, and, for the following reasons, we reverse.
As noted supra, the complaint was filed on February 15, 1978. Thus, the last day to commence trial within the period of Rule 1100 was August 14, 1978. When the case was called to trial on May 30, 1978, appellee appeared without counsel, stating that he had previously been represented
by privately retained counsel at his preliminary hearing; however, as he had not paid his counsel's fees, appellee was now unrepresented. After questioning appellee, the court continued the case and advised appellee to seek representation by the Public Defender immediately. As it appeared appellee would not be prepared to proceed to trial during the same term of court, thus delaying trial of the case until the next term of court which commenced in September, on June 1, 1978, the Commonwealth filed a petition for an extension of time under Rule 1100. A Rule to Show Cause, returnable June 9, was attached to the petition and a hearing on the petition was scheduled for June 14. The petition was served on appellee's formerly retained counsel, on appellee and on the Public Defender, but no answer was filed and no one appeared at the hearing or opposed the petition in any manner. No action was taken on the petition by the court at that time. On September 1, 1978, the Public Defender entered his appearance on appellee's behalf. Appellee filed a counseled petition for dismissal pursuant to Rule 1100, which was denied by the trial court.*fn1 Trial commenced December 1, 1978.
The issue presented is whether any part of the delay in bringing appellee to trial can be attributed to the unavailability of appellee or his counsel, and, thus, excluded from the computation of the 180 day period under Rule 1100(a)(2). Rule 1100(d)(1), in effect at the time, provided: "In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from the unavailability of the defendant or his attorney."
In Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977), we held that a defendant who had not waived his right to counsel and who, although financially capable of retaining counsel, appeared uncounselled for
proceedings in connection with his case was unavailable for trial within the meaning of Pa.R.Crim.P. 1100(d)(1). We further held that those periods of delay in the proceedings which were caused by the accused's failure to obtain counsel were excludable from the computation of the 180 day period in which the accused was required to be brought to trial. See, also, Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) (plurality opinion). Although Millhouse is not controlling here,*fn2 as, instantly, the problem arose out of Mr. Manley's asserted financial inability to retain counsel, Millhouse is sufficiently analogous to lend support for our now holding that where, as here, an accused appears for a court proceeding without counsel and without waiving his right to counsel, the period of delay caused thereby is excludable from the computation of time for commencing trial under Rule 1100 on the ground that the accused is obviously unavailable for trial.
When the instant case was called to trial on May 30, there was a courtroom available and the Commonwealth was prepared to proceed. The only reason trial did not commence on that date was Mr. Manley's having failed to secure legal counsel, whether privately or publicly funded. The trial court advised Mr. Manley of the gravity of the charges against him and of the necessity of legal representation, both during the conduct of the trial and during the pendency of the trial to aid in posting bail. Mr. Manley did not waive his right to counsel, and the court requested that Mr. Manley be escorted to the Public Defender's Office immediately following the proceedings in order to determine whether he qualified financially for the services of the Public Defender. The record does not disclose the time when Mr. Manley actually contacted the Public Defender; but at some point the Public Defender was contacted as he did in fact enter an appearance on Mr. Manley's behalf more than three months later, on September 1. Mr. Manley's
failure to obtain counsel on his behalf was the direct cause of the delay in the proceedings which resulted on May 30, and the period of time from May 30 to August 31, a period of 94 days, is attributable to Mr. Manley's unavailability, and, thus, excludable from computation of the 180 day period within which the Commonwealth was required to bring Mr. Manley to trial. ...