No. 03151 Philadelphia 1982, APPEAL FROM THE ORDER ENTERED OCTOBER 6, 1982 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 79-03-675-678
Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
William P. James, Philadelphia, for appellee.
McEwen, Cirillo and Beck, JJ. Beck, J., concurred in the result.
[ 334 Pa. Super. Page 451]
The Commonwealth appeals from an order discharging appellee Raymond Fisher under Pennsylvania Rule of Criminal Procedure 1100.
This case arose from the rape of a seventeen-year-old girl in Philadelphia on July 20, 1976. A criminal complaint charging Fisher with the crime was filed the next day; however, Fisher managed to elude apprehension until November 11, 1978. At least seven times over the course of the next four years, Fisher was adjudged incompetent, and consequently could not be brought to trial for most of that period. On August 26, 1982, the Court of Common Pleas of
[ 334 Pa. Super. Page 452]
Philadelphia County found Fisher to be competent and ordered his case to proceed to trial on September 22, 1982. Before the date set for trial, Fisher's counsel, pursuant to Pa.R.Crim.P. 1100(f), moved to dismiss the charges on the ground that Fisher's right to a speedy trial had been denied. On the 22nd of September the court entertained arguments of counsel on the motion to dismiss. The court continued the trial to October 6, 1982, and reserved ruling on the motion until then. After reconvening on October 6th, the court granted the defense motion and discharged Fisher. We reverse.
Rule 1100, as applicable to this case, provides that the Commonwealth has 180 days from the filing of a criminal complaint to bring the defendant to trial. Pa.R.Crim.P. 1100(a)(2). Any delay beyond 180 days must be accounted for either by an extension granted to the Commonwealth under Rule 1100(c), or by an exclusion of time attributable to defense delay under Rule 1100(d). Commonwealth v. Colon, 317 Pa. Super. 412, 464 A.2d 388 (1983). A defendant may enforce his rights under the rule by filing a petition to dismiss under Rule 1100(f).
After analyzing the long and tortuous procedural history of this case, we have concluded that all periods of delay beyond 180 days were properly accounted for under the rule, and hence discharge was erroneous.
It is beyond dispute that Fisher was a fugitive from justice for the period from 7/21/76 to 11/11/78, when finally he was arrested. Fisher absented himself throughout this entire period despite duly diligent efforts by the police to locate him, and the entire period must therefore be chalked up to unavailability and excluded from the Rule 1100 computation. Commonwealth v. Winn, 327 Pa. Super. 296, 475 A.2d 805 (1984); Commonwealth v. Lyles, 315 Pa. Super. 194, 461 A.2d ...