No. 974 Philadelphia, 1982, No. 1661 Philadelphia, 1982, Appeals from the Orders of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 81-08-988-989.
Garold Edward Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Jeffrey L. Penneys, Assistant Public Defender, Philadelphia, for appellee.
Spaeth, President Judge, and Brosky and Hoffman, JJ.
[ 324 Pa. Super. Page 407]
The sole issue before us in this appeal is whether the lower court erred in dismissing charges that had been filed against the appellee. The court dismissed the assault*fn1 and recklessly endangering another person*fn2 charges on the grounds that appellee could not be timely tried, as required by Pa.R.Crim.P. 1100. The court therefore denied a petition for extension of time which had been filed by the Commonwealth, dismissed the charges and discharged appellee. We reverse and remand for trial.
A complaint was filed on February 28, 1980 charging appellee with the above listed crimes. The charges stem from an alleged attack on his brother by appellee.
On February 28, 1980 the police received information from appellee's mother that he had been in the vicinity of Germantown and Chelten Avenue, Philadelphia. She also
[ 324 Pa. Super. Page 408]
told the police that her son no longer resided with her and was not welcome in her home.
On February 28, 1980, April 20, 1980, July 1, 1980, and August 17, 1980, the police went to the Germantown-Chelten area because they had received information that appellee had been sighted there. The officer who visited the area testified at the Rule 1100 hearing that he travelled on neighboring streets and looked in various bars and open business establishments, but was unable to locate anyone fitting appellee's description. The officer also circulated 60 or 70 photos of appellee to the police squads who worked in the area where appellee had been spotted.
Appellee was arrested on January 4, 1981. Petitions for extension of time were filed on June 29, 1981, December 31, 1981 and February 28, 1982. At a hearing on March 2, 1982 the lower court denied the last petition. The Commonwealth contends that appellee was unavailable from February 28, 1980 to January 4, 1981.
It was agreed by the Commonwealth and appellee's counsel at the March 2 hearing that appellee was unavailable for trial from January 13, 1981 to December 30, 1981 during which period appellee was incompetent. The issue below and before us is whether ...