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filed: September 28, 1984.


No. 1828 PHILADELPHIA, 1980, Appeal from an Order in the Court of Common Pleas, Trial Division/Criminal Section, of Philadelphia County, Nos. 79-07-954, 956.


Gaele McGlaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Gilbert E. Toll, Philadelphia, for appellee.

Spaeth, President Judge, and Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ. Spaeth, President Judge, files a concurring opinion.

Author: Hester

[ 333 Pa. Super. Page 430]

Appellee, Joseph M. Lafty, was charged with simple assault, aggravated assault, possession of an instrument of

[ 333 Pa. Super. Page 431]

    crime-generally, possession of an offensive weapon, and criminal conspiracy as a result of the severe beating of Ronald Thomaston on June 8, 1979 on an elevated public transportation platform at Kensington and Allegheny Avenues in Philadelphia. Appellee accosted the victim uttering a disparaging racial remark and then proceeded to beat him with a "two by four" board. The victim did not provoke the actions of appellee and his companions. Mr. Thomaston underwent surgery on his right elbow, casts were applied to his fractured arms and he remained in Germantown Hospital for ten days. His arms were fractured as he repelled blows to his head and rib cage.

Following a non-jury trial on January 30, 1980, appellee was found guilty of aggravated assault and criminal conspiracy. Appellee's post-verdict motions alleged that the trial court erred in granting the Commonwealth's petition for an extension of the trial date under Pa.R.Crim.P. No. 1100. On July 15, 1980, following a brief hearing, the lower court agreed with appellee that his speedy trial rights were violated. Accordingly, appellee was discharged. The Commonwealth filed this appeal.

Criminal charges were filed against Mr. Lafty on the day of the crime, June 8, 1979. As a result, the original estimated run-date for trial under Rule 1100(a)(2) was December 5, 1979. The preliminary hearing was scheduled for June 13, 1979; however, a continuance to July 13, 1979 was necessary due to the victim's unavailability as he remained a patient at Germantown Hospital. The preliminary hearing did take place on July 13, 1979, and appellee was bound for court on all charges.

On September 18, 1979, the first trial date, appellee requested a continuance in order to locate a defense witness. This was granted and trial was continued to October 29, 1979. On this latter date, trial was again continued to December 11, 1979; the complainant was undergoing oral surgery and was unable to appear. Recognizing that the December 11th date extended beyond the original estimated run-date, the court questioned appellee as to whether he

[ 333 Pa. Super. Page 432]

    was willing to waive his rights under Rule 1100. Appellee agreed to do so and signed a boiler-plate written form to memorialize the waiver.

On December 11, 1979, the complainant arrived late for court. He was not available earlier that day; therefore, trial was continued for a third time. On the following day the Commonwealth filed a petition for extension under Rule 1100(c), alleging that fifty-four days were excludable from the one-hundred-and-eighty-day period between the filing of the complaint and commencement of trial, and that it had exercised due diligence in promptly prosecuting appellee. The lower court conducted a hearing on this petition for an extension on January 14, 1980. Oddly enough, appellee did not file an answer and accompanying motion to dismiss in response to that petition until January 18, 1980, four days following the hearing. In extending the run-date to January 28, 1980, the court agreed that fifty-four days were excludable. Trial was scheduled for and did commence on January 30, 1980, two days beyond the recomputed run-date. The court believed that January 30th was the earliest available date for trial despite the Commonwealth's exercise of due diligence.

The Commonwealth's primary contention on appeal is that appellee waived his right to speedy trial. With respect to this waiver argument, the Commonwealth contends 1) that appellee did not pursue his Rule 1100 rights at any time during the pre-trial stage; 2) that appellee raised no objection at the hearing on the petition for an extension while the lower court re-computed the run-date as January 28, 1980; 3) that appellee insufficiently raised a brief and general objection to the lower court's finding of due diligence at that hearing; and 4) that appellee's answer and motion to dismiss, containing specific objections to the run-date extension and the Commonwealth's allegation of due diligence, were not filed until four days following the Rule 1100 extension hearing. The Commonwealth further alleges that it exercised due diligence throughout the proceedings;

[ 333 Pa. Super. Page 433]

    therefore, any delays in instituting trial were not attributed to its preparation.

As we are aware of the opinion that the Commonwealth continuously exercised due diligence in attempting to bring appellee to trial, it is not necessary to address whether appellee waived his Rule 1100 rights. The order is therefore reversed, judgment of sentence is reinstituted and the matter remanded for resentencing.

Although Rule 1100(a)(2) requires the commencement of trial no later than one hundred and eighty days following the filing date of the written criminal complaint, certain days can be excluded from this period so that trial may actually occur beyond one hundred and eighty days from the filing date. This proviso is set forth in Rule 1100(d) as follows:

(d) In determining the period for commencement of trial, there shall be excluded therefrom:

(1) the period of time between the filing of the written complaint and the defendant's arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;

(2) any period of time for which the defendant expressly waives Rule 1100;

(3) such period of delay at any stage of the proceedings ...

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